1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 2168/2009 Smt. Durga Gaurishankar Bhattad ..vs.. Mahesh Gupta and another --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. C. F. Bhagwani, Advocate for applicant. Mr. C. N. Deshpande, Advocate for non applicant no.1 Ms. T. D. Khade, A.P.P. for non applicant no.2. CORAM:- R. Y. GANOO, J. DATED:- 8 th SEPTEMBER, 2009 1. Applicant is complainant before learned 2nd Jt. Judicial Magistrate First Class, Nagpur in Criminal Complaint Case No. 1492/2003. Non applicant no.1 is accused in the said complaint. The applicant had filed an application at Exh.-20 before learned Judicial Magistrate First Class praying that one lady by name Shubhangi Gupta should be joined as an accused. The application came to be rejected by order dated 28.09.2007. Thereafter, evidence came to be recorded and on the basis of the said evidence, the applicant felt that some material is obtained in the evidence and, therefore, the applicant cannot file an application for joining the said Shubhangi as an accused being application dated 24.03.2008 filed under Section 319 2 of the Code of Criminal Procedure. That application came to be rejected by speaking order dated 26.03.2008 by learned Judicial Magistrate First Class. 2. It is seen that the applicant challenged order dated 26.03.2008 by filing Criminal Application No. 1493/2008 before this Court. That application was allowed to be withdrawn with liberty to the applicant to first challenge order dated 28.09.2007. Based on that order dated 02.05.2009, the applicant has filed this application so as to challenge order dated 28.09.2007. 3. I have heard learned Advocate. It is required to be looked into that when order dated 28.09.2007 was passed when no evidence whatsoever was recorded and the order came to be passed so as to reject the application for joining Shubhangi Gupta. In view of above, no fault can be found in the said order because provisions of Section 319 of the Code of Criminal Procedure can be used so as to join as party-accused only if the evidence is recorded up to a particular stage (up to the stage of filing of the said application under Section 319 of the Code of Criminal Procedure), prima facie disclosing the alleged involvement 3 of a particular person. Since, no evidence came to be recorded prior to the passing of order dated 28.09.2007 application, order dated 28.09.2007 was non est and in fact, it was necessary for the applicant to challenge the same. 4. Hence, challenge to order dated 28.09.2009 need not be gone into and the application can be dismissed. 5. Now an order is passed on 26.03.2008, rejecting the application under Section 319 of the Code of Criminal Procedure, which order has been passed after some evidence has been recorded. By the said order, request made by the applicant is rejected. The applicant has every right to challenge that order, hence, the applicant is free to challenge the order dated 26.03.2008 by filing substantive petition irrespective of what has happened in the past and ventilate his grievance. With these observation, the application so as to challenge the order dated 28.09.2007 stands dismissed. 6. After the aforesaid order is passed learned Advocate for the applicant prays for stay of the 4 proceedings before the learned trial Judge on the ground that he wants to challenge order dated 26.03.2007 and it is likely that the matter which is at the stage of arguments may be taken up. I do not wish to stay the proceedings in the trial Court. To that extent, the request made before the Court today is declined. JUDGE kahale