CRI.REVN-359-2004.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 359 OF 2004

Vitthal S/o Dhondiram Sonawane

]

Age : 55 Years, Occu.: Agri.,

]

R/o : Jirewadi, Tq. Parali,

]

Dist. Beed.

]

… Applicant

Versus

1.

The State of Maharashtra

]

2.

Limbaji S/o Sonba Sonawane

]

Age : 50 Years, Occu. : Agril.,

]

R/o Bhabhalgaon, Tq. Ambajogai,

]

Dist. Beed.

]

… Respondents.

. . .

Mr. Satej S. Jadhav, Advocate for Applicant.

Mr. S. P. Tiwari, APP for Respondent – State.

Mr. Kunal Kale, Advocate h/f. Mr. R. S. Deshmukh, Senior Counsel for

Respondent No.2.

. . .

CORAM : BHARAT P. DESHPANDE, J.

RESERVED ON : 12^th AUGUST 2022

PRONOUNCED ON : 18^th AUGUST 2022

JUDGMENT :

Vide order dated 31^st January 2005 rule was issued.

2.

By way of present Revision filed under section 397, 401 and 482

of the Code of Criminal Procedure, the applicant is challenging the order

passed below Exhibit-23 in Summary Criminal Case No. 907 of 1998, whereby

his application for recalling of the process issued by the learned Magistrate for

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the offences punishable under sections 194 and 199 of Indian Penal Code

came to be rejected.

3.

Heard learned advocate Mr. Satej Jadhav for applicant, learned

APP Mr. S. P. Tiwari for State and learned advocate Mr. Kunal Kale h/f. Mr.

R. S. Deshmukh for respondent no.2.

4.

With the assistance of learned counsel appearing for respective

parties, I have perused entire record and more specifically a complaint lodged

by respondent no.2, order passed by the learned Magistrate for issuance of

process and thereafter the impugned order wherein application for recalling of

the process was rejected.

5.

Learned counsel for applicant strongly contended that complaint

filed by respondent no.2 before the Magistrate for the offences punishable

under sections 199, 193, 196 and 209 of Indian Penal Code is not at all

tenable. In this respect, he placed reliance on the provisions of section 195(1)

(b)(ii) of the Code of Criminal Procedure and claimed that there is clear bar of

taking cognizance of any complaint filed by a private party with regard to the

offences punishable under sections 194 and 199 of Indian Penal Code. He

forcefully submitted that it is between the concerned court and the accused

and a private party is not entitled to file complaint. In this respect learned

counsel for applicant placed reliance on the decision of the Apex Court in the

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case of Iqbal Singh Marwah and Anr. Vs. Meenakshi Marwah and Another

reported in (2005) 4 SCC 370.

6.

Learned counsel for applicant then invited attention of this Court

to the impugned order and the reasoning of the learned Magistrate in it. He

submitted that the learned Magistrate was convinced that no private complaint

is tenable and that order of issuance of process passed by his predecessor in

the office is incorrect, however, he refrained from recalling such order only on

the ground of maintaining judicial propriety.

7.

Learned APP appearing for respondent no.1 – State submitted

that the findings in the impugned order are clearly in favour of the applicant,

but such application was rejected only on the ground for maintaining judicial

propriety.

8.

Learned counsel appearing for respondent no.2 submitted that the

order passed by the learned Magistrate rejecting recalling of process is justified

and therefore no interference is necessary.

9.

Respondent no.2/complainant filed private complaint against

applicant/accused for the offences punishable under section 199, 193, 196 and

209 of Indian Penal Code. Complainant entered into the witness box for

verification of complaint and submitted before the learned Magistrate that

accused gave false evidence before the court and therefore, he should be

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prosecuted. After considering such verification of the complaint, learned

Magistrate issued process against accused