-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.370 OF 2008 APPLICATION NO.370 OF 2008 APPLICATION NO.370 OF 2008 Dr.Cavas Fredoon Bilimoria ...Applicant vs. State of Maharashtra & Ors. ...Respondents Mr.Abad H.H.Ponda for the Applicant Mr.Y.M.Nakhawa A.P.P. for State Mr.R.G.Pagdhare for Respondent No.2. CORAM: CORAM: CORAM: SMT.N.N.MHATRE,J. SMT.N.N.MHATRE,J. SMT.N.N.MHATRE,J. DATE DATE DATE : JUNE 13, 2008. : JUNE 13, 2008. : JUNE 13, 2008. P.C.: P.C.: P.C.: 1. The order of the Additional Sessions Judge, Greater Bombay dated 4th January 2008 has been challenged in this petition. By this order the Sessions Court has held that the actions of the learned Metropolitan Magistrate of issuing process against the petitioner was right. The entire controversy in the present case is whether after process has been issued against the accused, the Metropolitan Magistrate can consider the petition filed by the complainant and other extraneous material and issue process or summons to the petitioner. The learned Sessions Judge has observed that he had to consider "whether a case is made out against the Revisional Applicant for proceeding under section 319 of the Code of Criminal Procedure,1973". After citing the Judgment of M/s.India Carat Pvt Ltd. Vs. State of Karnataka reported in 1989 Cr.L.J. 963 and Hareram Satpathy Vs. Tikaram Agarwala and others reported in 1978 Cr.L.J. page 1687. The Sessions Court has -2- observed, "There was sufficient material found to the Magistrate for taking cognizance of the offence against the proposed accused, the order passed in this case is within the forcorners of law and under section 319 of the Code of Criminal Procedure,1973." 2. It is obvious from the case and perusal of the order that the Sessions Court has proceeded on a wrong footing. It was the case of the Petitioner herein that the stage of section 319 of the Code of Criminal Procedure had not been reached at the trial. The complainant has submitted that although that stage had not arrived, the learned Magistrate can summon another person who if necessary can be added under section 191 (3) of the Cr.P.C. as an accused. On the other hand, it was the Petitioner’s case that he can be summoned only after the evidence was recorded, under section 319 of the Cr.P.C. 3. Admittedly, no evidence has been led at the trial and in fact it is only at the stage where the charge sheet has been filed. The entire approach of the revisional Court is incorrect as it considered whether the Petitioner could be added as an accused under section 319, when neither party had argued that the trial had proceeded and evidence had been led. In these circumstances, the order of the Sessions Judge is quashed and set aside and the Revision Application is remanded for being heard afresh. All contentions which are raised in -3- the present petition are left open for the parties to raise before the Sessions Court. 4. The Sessions Court is directed to dispose of the Revision Application within a period of two months from today. It is made clear that the trial will not proceed during the pendency of the Revision Application. * * * * *