IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1623 OF 2008 Mr.Sameer Navin Davda & Ors. .. Applicants Vs. State of Maharashtra & Anr. .. Respondents Smt.Malika Ingale for the Applicants. Ms.A.T.Jhaveri, A.P.P for Respondent No.1. Mr.Rishi Bhuta for Respondent No.2. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 09th July 2008. P.C.: . Heard learned counsel appearing for the applicants and learned counsel appearing for the 2nd respondent. I have heard learned A.P.P for the 1st respondent. 2. The 2nd respondent and the 1st petitioner had filed two separate applications before the learned Magistrate making a claim over certain movable property seized by the police. By a common order dated 27th February 2008 passed by the learned Magistrate, both the applications were disposed of. The application filed by the 1st applicant was allowed and the application filed by the 2nd respondent was rejected. The 2nd respondent filed a revision application before the Sessions Court : 2 : for challenging the said common order. The prayer made in the Revision Application reads thus: "a. This Hon’ble Court be pleased to assail the correctness and propriety of the impugned order dated 27th February 2008 and be pleased to set aside the same and allow the application of the applicant being Notice No.57/N/2008 and be pleased to return the property to the applicant on such terms and conditions as this Hon’ble Court may deem fit and proper." 3. By the impugned judgments and order, the learned Additional Sessions Judge, Greater Bombay at Dindoshi allowed the revision application by passing the following order: "1) Criminal Revision Application No.23 of 2008 filed by the Applicant/Complainant is hereby allowed. 2) The impugned order dated 27.2.2008 passed by the learned Metropolitan Magistrate of : 3 : 26th Court, Borivali, Mumbai, incharge of 24th Court, Borivali in Notice No.91/N/2008 is set aside and Respondent No.3/Accuised No.2 husband Sameer Dawda is directed to deposit all the ornaments handedover to him pursuant to the order of the Ld. Metropolitan Magistrate on Application bearing No.91/N/2008 in the Court of the Ld. A.C.M.M of 24th Court, Borivali, Mumbai. 3) Application bearing No.57/N/2008 of the Applicant/complainant is allowed and Ld.A.C.M.M. of 24th Court, Borivali is directed the return all the gold ornaments to Applicant/complainant on execution of Bond in the sum of Rs.5,00,000/- (Rs.Five Lakh Only). 4) That Ld.A.C.M.M., 24th Court, Borivali is directed to apply charge of the offence u/sec.304 I.P.C. r/w.34 of I.P.C. and commit case to the Court of Sessions. 5) The Revision Application of the Applicant/Complainant is disposed of. 6) Record and Proceedings received in this : 4 : case be sent back to the concerned Court of Ld.A.C.M.M. of 24th Court, at Borivali, Mumbai." Apart from other submissions on merits, the submission of the learned counsel appearing for the applicants is that considering the limited scope of the revision application, the learned Additional Sessions Judge could not have passed the direction which is contained in clause No.4 of the operative part of the impugned order. 4. The perusal of the impugned order shows that the learned Judge has dealt with the revision application in most unsatisfactory manner. Apart from this, there was no occasion for the learned Judge to issue a direction to the learned Magistrate to apply a charge of the offence under section 304 read with section 34 of the Indian Penal Code and to commit the case to the Court of Sessions. 5. When this clear illegality was pointed out to the learned counsel for the 2nd respondent, he suggested that instead of keeping this application pending for final hearing in this Court, the revision application be ordered to be heard afresh. : 5 : 6. Hence, an order of remand will have to be passed. While passing the order of remand, I deem it proper to record displeasure about the manner in which the direction in paragraph 4 of the impugned order has been issued in the Revision Application. 7. Hence, I pass the following order: (i) The impugned judgment and order dated 30th April 2008 is quashed and set aside and the Criminal Revision Application No.23 of 2008 is restored to the file. (ii) The Revision Application shall be heard and decided afresh as expeditiously as possible and preferably on or before 31st October 2008. (iii) All contentions of the parties are expressly kept open. (iv) The Application is allowed in above terms. : 6 : (A.S.Oka,J)