1 APL 3, 4 OF 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3 OF 2011 1. Dr. Abid Hussain 2. Shri R.A. Shah, .. Applicants -versus Shri D. B. Chaudhari, Drug Inspector and anr .. Respondents. WITH CRIMINAL APPLICATION NO.4 OF 2011 1. Mr. H. F. Khorakiwala 2. Shri. Shekhar Dutta, 3. Shri. Bharat Patel, 4. Shri Aman Mehta .. Applicants -versus Shri D. B. Chaudhari, Drug Inspector and anr .. Respondents. Shri. Shirish Gupte i/b Mr. Subodh Desai, for the Applicant. Mrs. A.A. Mane, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 25rd February, 2011 P.C. 1. These applications are directed against the order 2 APL 3, 4 OF 2011 passed by the learned Judicial Magistrate First Class, Wada, issuing process in Criminal Complaint No.40 of 2008. The applicants in Criminal Application 3 of 2011 are arrayed as accused Nos 8 and 13. Applicants in Criminal Application No.4 of 2011 are arrayed accused Nos, 7, 9, 14 and 16 in the above criminal complaint. Complaint was filed by Drug Inspector, Office of the Joint Commissioner (K.D.), Food and Drug Administration, Maharashtra State, Thane, in which learned Magistrate ordered issuance of process. This order was challenged by accused Nos 8 and 13 by preferring Criminal Revision No.131 of 2010. This revision was disposed of by the learned Extra Joint Ad Hoc Additional Sessions Judge, Thane, by his judgment and order dated 21.09.2010, whereby he held that the order directing issuance of process is interlocutory order and revision is not maintainable, under the Revisional jurisdiction of the Sessions Court. Therefore, he did not go into the merits of the matter. 2. In view of this rejection of Criminal Revision application, the other applicants in Criminal Application No.4 of 2011, have not approached the Court of Sessions as it would have been futile exercise. 3. Learned counsel for the applicants pointed out that the Hon’ble Supreme Court, has held in Rajendra Kumar Sitaram Pande and others -vs- Uttam and another (1999) 3 Supreme Cort Cases 134, that the order directing 3 APL 3, 4 OF 2011 issuance of process is not interlocutory order, the Magistrate could not recall the order directing issuance of process. Thereafter this Court in V. K. Jain and ors -vs- Pratap V. Padode and anr 2005 (3) Mh. L. J. 397 held that since in Adalat Prasad -VS- Rooplal Jindal and others 2004 (4) Mh. L.J. 274, it has been held that the order could not be recalled by Magistrate a revision would lie. In Dhariwal Tobacco Products Ltd and ors -vs- State of Maharashtra and anr (2009) 2 Supreme Court Cases, 370, the Supreme Court has specifically held that indisputably issuance of summons is not an interlocutory order within the meaning of Section 397, therefore, revision would normally lie. Therefore, the view taken by the learned Sessions Judge that revision was not tenable is not correct. 4. In view of this Criminal Application No.3 of 2011 is partly allowed. The order dated 21.09.2010, in Criminal Revision Application No.131 of 2008, passed by the learned Ad Hoc Additional Sessions Judge,Thane is set aside. The learned Additional Sessions Judge shall rehear the revision on its own merits; and the Criminal Application No.4 of 2011 is allowed to be withdrawn with liberty to approach the learned Sessions Court, for filing proper revision. The Court of Sessions would undoubtedly take into consideration the period spent in preferring this revision by the applicants in Criminal Application No.4 of 2011, while entertaining the application for 4 APL 3, 4 OF 2011 condonation of delay. 5. In view of this both the above Criminal Applications are disposed of. (R. C. CHAVAN, J.)