1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2510 OF 2009 Geetanjali W/o.Vijaykumar Nawander, Age-53 years, Occu-Household and business, R/o.Latur APPLICANT VERSUS 1. The State of Maharashtra, 2. Namdeo S/o.Shankarrao Badde, President Mahatma Phule Shikshan Prasarak Mandal, Latur, Age-79 years, Occu-Agriculturist, R/o.Dalda Factory ploting, Nanded Road, Latur 3. Dnyanoba S/o.Sangram Musne, Age-51 years, Occu-Agriculturist, R/o.Chandegaon, Tq.Udgir, Dist. Latur RESPONDENTS Mr.R.F.Totala, learned counsel for applicant Mr.N.R.Shaikh, learned counsel for respondent State. Mr. (CORAM : A.V.POTDAR, J.) DATE : 10/12/2009 ORAL JUDGMENT : 1. By the present application, the applicant has approached this 2 Court u/s. 482 of Cr.P.C. to quash the order passed by the Assistant Session Judge, Latur in Criminal Revision No.5/2009, dated 07/05/2009 which revision arises out of the order passed by the learned C.J.M. Latur dated 01/09/2007 on the private complaint filed by the 2nd respondent. It is to be cleared that this application is preferred by the applicant who is arrayed as an accused no.3 in the said private complaint. 2. Rule. 3. Rule made returnable forthwith. By consent of the parties, the application is finally heard at the stage of admission itself. 4. Considering the submissions across the bar, it appears that the respondent no.2 herein has filed private complaint against the present applicant and 5 others for alleged offence punishable u/s. 420, 427, 465, 468, 470, 500, 506 323, 192, 193 r/w. 34 of IPC for the alleged acts committed by these applicants as alleged in the said complaint. It further appears that thereafter the complaint was referred for investigation u/s. 156(3) of Cr.P.C. The report was submitted by the concerned Police Officer from Shivaji Nagar Police Station, Latur to the C.J.M. Latur. Considering this report, order of issuance of process came to be passed only against the present applicant and two persons who are arrayed as an accused in the said complaint for an offence punishable u/s. 427 of IPC to cause damage to the property of the complainant, but no process was issued 3 against the public officers, who were arrayed as an accused no.4 to 6 in the said complaint. Being aggrieved by the order of issuance of process against the applicant, the applicant has approached the Learned Sessions Court at Latur, which revision to be dismissed against the said order passed by the Learned Assistant Judge in the said criminal revision, as well as the order of issuance of process is impugned in the present criminal application. 5. Considering the submissions across the bar, before taking cognizance of an offence punishable u/s. 427 of The IPC, what is mis-chief as defined under the Penal Code require to be considered. The mis-chief is defined u/s. 425 of The IPC which read as follows : Section 425 of IPC : Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation, thereof as destroys or diminishes its value or utility, or affects in injuriously, commits “mischief”. 6. Before issuance of process, on the basis of report received by the Incharge of Shivaji Nagar Police Station, Latur, the allegations in the complaint require to be satisfied about the ingredients of section 425 of IPC. There is a passing allegation in para no.6 of the complaint that by encroaching the land of the complainant i.e. 2nd respondent, the present applicant who is arrayed as respondent no.3 has put up a gate, but before making that allegation whether the 4 property was demarketed and at the hands of present applicant, there is change in nature of that property, by putting the steel gate, by encroaching the land of complainant. These facts require to be whispered somewhere by way of allegations in the complaint. If there is no allegation to that effect, then ingredients to constitute an offence of mis-chief as contemplated u/s. 425 of IPC are not satisfied. 7. It is rightly pointed out by learned counsel appearing for the applicant that on reading allegations as made against this applicant in the complaint lodged by 2nd respondent before the C.J.M., who had issued process for an offence punishable u/s. 427 r/w. 34 of IPC, require interference as this issuance of process even though challenged before the Learned Sessions Court by way of preferring the revision, the learned Sessions Court decline to interfere in the order of issuance of process at the hands of Trial Court. Considering the allegations in the complaint as it is even if accepted, they will not constitute an offence as contemplated u/s. 425 of The IPC and if it is so, the order of issuance of process is liable to be quashed and set aside. Accordingly the order of issuance of process is quashed and set aside, so far as the present applicant is concerned. 8. Rule is thus made absolute as indicated above. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.2510-09