1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL REVISION APPLICATION NO.11 OF 2009 Mr.Dilip A.Dhuruv & Anr. ...Applicants vs State of Maharashtra & Anr. ...Respondents Mr.Jahangir Khajotia for the applicants Ms S.V.Gajare, A.P.P for State Mr.Harshad Palwe for respondent no.2 CORAM :A.S.OKA,J. DATE : JULY 8, 2009 P.C. 1 Rule. The learned counsel for the second respondent waives service. The learned A.P.P waives service for first respondent. 2 The second respondent filed a complaint alleging commission of offence under sections 467, 468, 471 r/w section 114 of the Indian Penal Code. On 15th October 2008 the learned Magistrate directed that the complaint be sent to the concerned police station for investigation under section 202 of the Code of Criminal Procedure,1973. The revision application was preferred for challenging the said order. By the impugned order dated 1st January 2009, the learned Additional Sessions Judge allowed the said application by setting aside the order dated 15th October 2008 and directed that the complaint shall be sent to the police under section 156 (3) of the said Code of 1973. 3 The learned counsel for the revision applicant has raised two contentions. The first contention is that the learned Magistrate has already recorded a verification statement under section 200 of the said Code and therefore an order under section 156 (3) could not have 2 been passed. The second contention is that the applicant should have been heard by the Sessions Court. 4 The record of the complaint was called for. The learned counsel for the applicant has invited my attention to the affidavit dated 23rd September 2008 executed before the Metropolitan Magistrate. He submits that the same is the verification statement. Perusal of the complaint and the record shows that at no stage, the learned Magistrate had kept the complaint for recording a verification statement under section 200 of the Code of Criminal Procedure,1973 and the verification statement was in fact never recorded by the learned Magistrate. What is pointed out by the counsel for the applicant is the affidavit on record of the complaint seeking a prayer that order under section 156(3) of the said Code of 1973 be passed. The said affidavit is not a verification statement. Hence, the first contention raised by the applicant will have to be rejected. 5 As far as the second contention is concerned, admittedly, the applicant was not heard by the Sessions Court. In view of the decision of the Apex Court in the case of Raghu Raj Singh Rousha Vs. Shivam Sunderam Promoters Private Limited and another [(2009) 2 SCC page 363], the applicant ought to have been heard by the Sessions Court. Only on this ground, the impugned order deserves to be interfered with. 6 Hence I pass the following order : i) Impugned Judgment and Order dated 1st January 2009 is quashed and set aside and criminal revision application no.1204 of 2008 is restored to the file of the Sessions Court. ii)The 2nd respondent is permitted to amend the revision application for impleading the applicant as 3 a party respondent. It is made clear that the second respondent will not be entitled to raise any objection regarding limitation. iii)The parties are directed to appear before the learned Principal Judge of the City Civil Court on 10th August 2009 at 11.00 a.m. The learned Principal Judge may himself take up the revision application for hearing or may assign the same to some other court. iv)The revision application shall be decided as expeditiously as possible. v) Except the contention regarding recording of verification statement, all contentions of the parties are kept open. vi)The record and proceedings be returned to the concerned court. JUDGE