:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1874 OF 2008 PETITION NO.1874 OF 2008 PETITION NO.1874 OF 2008 Suresh Ramchandra Sable ..Petitioner V/s The State of Maharashtra ..Respondents Mr.C.S. Joshi for the Petitioner Mrs.M.M. Deshmukh, APP for the State Mr. Kulkarni, Police Prosecutor present CORAM : S.B.MHASE & A.A. SAYED JJ. DATE : 19TH DECEMBER, 2008 P.C. 1. The petitioner is an accused in Regular Criminal Case No.384/2005, pending in the Court of 6th Jt. J.M.F.C., Satara. Apart from the petitioner there are 3 other accused who are the family members of the petitioner. They have been charged for having committed the offence under sections 498-A, 406 r/w section 34 of Indian Penal Code. 2. The petitioner has approached this Court with a grievance that since 8th of August, 2007 the prosecution is not proceeding with this case consistently and on some pretext or other the :2: adjournments have been sought. It is submitted that more than 14 adjournments have been taken by the prosecution. It appears that 2 witnesses have been examined and the 3rd witness is the complainant. While the evidence of the complainant was going on it appears that since there was a discrepancy in the dates as to when the complainant returned to village Vaduth i.e. her parents’ place, the question was asked, since 8/9/2005 to 14-9-2005 where she resided. That was objected. On that, the Court passed order after hearing both sides on 8-8-2007 and allowed the question. That order did not find favour with the prosecutor and therefore the prosecutor decided to proceed against the said order and therefore he got the matter adjourned.The adjournment was granted to the prosecution as the proposal to file writ was made, but it appears that the said proposal was rejected and the writ petition was never filed in this Court. However, a number of adjournments were taken and in the application dated 25-10-2007 the statement was made that the writ petition has been filed and it has been given to Advocate Deshprabhat on behalf of the State. Since accused persons opposed the application, time was granted by the :3: Court, with an understanding that the necessary orders will be obtained by the prosecution before the next date. The next date was 26-11-2007. On that day no orders were placed before the court. The accused presented an application and submitted that there are coming from different places i.e. two accused coming from Bombay and two are coming from other places. Their Advocate is also coming from Bombay, therefore, the adjournment may not be granted. After hearing both the parties a detailed order was passed by the Magistrate. The application was rejected and the prosecution was also directed to pay costs of Rs. 400/- to the accused. The costs was not deposited and instead of proceeding with the said matter, the prosecutor wanted to take the matter in revision as against the said order. His application for seeking time was rejected. However it appears that the prosecutor without getting any sanction from the Government filed a revision application No.69/2008 and obtained stay to the said order. 3. On this background and under these circumstances the accused found that dilatory tactics :4: were being adopted and have been followed by the prosecutor and the accused have approached this Court. Their grievance is that since the father of the complainant Rani Suresh Sable is a police officer and the prosecutor, in order to please that person is adopting dilatory tactics. 4. We have called the record and proceeding of revision petition No. 69/2008 also. After going through the proceedings we find that the proposal made by the prosecutor to challenge the order dated 8-8-2008 has been rejected and this was informed to the prosecution on 7-11-2008 and therefore, there was no question of filing writ petition before this court and the information given by the prosecution in application dated 25-10-2007 was absolutely false and imaginary. In fact when the proposal was pending for consideration the said application dated 25-10-2007 could not have been given by the police prosecutor before the Judicial Magistrate,F.C., Satara but for whatever best reasons known to the PP he has filed said application. What we find that at no point of time the order dated 8-8-2007 was challenged before this Court and not only that, but the proposal was :5: rejected and therefore the adjournments which have been sought by the police prosecutor on the pretext that the writ petition is pending and Mr. Deshprabhat was engaged in the matter are found to be false. Therefore, we are satisfied that the prosecutor in this case was otherwise interested in protracting the matter instead of conducting the matter before the JMFC. 5. Since we have called the papers of the revision application No.69/2008 pending before the Sessions Judge No.3 at Satara, we perused the papers and have decided to take cognizance of the said revision in this matter on merits. So far as tenability of it is concerned, it is interesting to note that the prosecutor has challenged the order dated 26-11-2007 and further it is also is interesting to note that this application was an application by the accused, wherein the accused represented to the court that the matter is fixed for examination of the complainant. It is pointed out to the Court that since last three dates there is no progress in the matter and that two accused are coming from Bombay and two are coming from village :6: and on lame excuse the adjournment is sought by the prosecution. It was pointed out that on that day no application was filed by the prosecution but on repeated calls nobody was present on behalf of the prosecution at about 3 p.m. It was also brought to the notice that no notice from the High Court has been received and therefore, the request was made to drop the proceeding. On this application the prosecutor has stated that in the morning session the APP in the concerned matters was present before the Court. It is no business of prosecutor to mention to the Court, that the prosecution has sent proposal of writ petition through public prosecutor and last chance be given to prosecution to confirm about fate of the writ etc. The Court after having considered it, rejected the application of the accused and directed APP to pay costs of Rs. 400/- since the matter was not proceeding and the complainant was not present for the examination. As against this u/s 397 Cr.P.C. revision application has been preferred firstly without sanction from the Government and secondly we fail to understand how Sessions Judge has entertained the revision application under Section 397 Cr.P.C. The section contemplates that the :7: Sessions Court may call for and examinee the record in proceeding before any inferior Courts situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior Court. Now in this matter the order is passed against the prosecutor to deposit costs of Rs. 400/- after taking into consideration the fact that he is not proceeding with the criminal prosecution and protracting the trial and the application which was made by the accused was rejected. Therefore no finding was recorded by the Court but costs was imposed which is the usual order which the Courts are suppose to pass to expedite hearing of the matter and to avoid the protraction of the trial at either sides. The above orders which are interlocutory orders cannot be challenged under section 397 Cr.P.C. The order which adjudicate the final rights of the parties may be challenged under section 397 of Cr.P.C. This order was passed so that the matter could proceed further which was being adjourned for :8: more than one year by the prosecutor and therefore, it was simplicitor inter-locutory order which could not have affected the rights of any of the parties and therefore revision under section 397 Cr.P.C. was not maintainable and Sessions Judge could not have entertained revision but surprisingly the revision was entertained and the order was passed staying the operation of the order. In fact the Sessions Judge, when entertaining such revisions should have been more cautious in entertaining the revision petition. It is also to be noted that the in the said flimsy revision petition the Court also called for record and proceeding, as a result of which, the trial came to a standstill before the Judicial Magistrate F.C. and the intention of the prosecutor not to proceed with the trial was achieved by the orders in the revision. The Sessions Court could have looked into this aspect of the matter while passing the order for calling the record and proceedings. The speedy trial of the accused is a right recognised under the Constitution and the Courts should not allow the dilatory tactics on the part of the prosecution. This further aspect has been completely overlooked while entertaining the proceedings and the order came :9: to be passed in the revision petition. We reserve ourselves and observe restraint in making comments about the conduct of the Sessions Judge, but we hope that in future the Sessions Judge will not indulge in such conduct of entertaining mechanically such revision petitions. 6. We therefore in extraordinary powers under writ jurisdiction quash revision application No.69/2008 and orders passed therein. In the facts and circumstances of the case, we are not in favour of protracting the proceeding any further; but in favour of expediting the trial. Since the right of the accused for expeditious trial is prejudiced as dilatory tactics are adopted by the prosecution, we allow the petition to that extent and therefore, pass the following order. ORDER (1). The accused persons are directed to remain present before the 6th Jt. J.M.F.C., Satara on 27th January, 2009. :10: (2). The Registrar (Judicial) of this Court is directed to send the papers of Revision Petition No.69/2008 to the Sessions Judge, Satara immediately so as to reach it to the Satara Court by 1st January, 2009. The Sessions Judge, Satara is further directed to send the case papers of the Criminal Case No.389/2005 to the 6th Jt. J.M.F.C. immediately on or before 6th January, 2009. We direct the prosecution to get summons issued to all the witnesses to whom they desire to examine in the said case so that the witnesses appear before the Magistrate on 27/1/2009. We direct the prosecution and the 6th Jt. JMFC,Satara to commence the part-heard trial of the proceedings on 27-1-2009 at 11 a.m. and continue the proceedings day by day i.e. de die in diem till the final adjudication of the case. (c) Both the sides are directed not to such any adjournment before the Magistrate. If any questions are disallowed the parties will not prefer any revision against that but the validity of those orders will be considered in case of appeal by the accused in appeal proceeding and in case of acquittal :11: in appropriate proceeding filed by the state but the protraction of any kind will not be tolerated by this Court. The case should be complete and decided as early as possible by the Magistrate. 7. The copy of this order shall be sent to the Sessions Judge who has dealt with the matter so that he will not pass orders in such manner henceforth in revision proceedings. 8. The copy of this order shall also be sent to the Law and Judiciary Department to take appropriate action about filing the revision petition without the sanction from the Government. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.) (S.B. (S.B. (S.B. MHASE, J.) MHASE, J.) MHASE, J.)