1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2481 OF 2009 The Municipal Commissioner of the Municipal Corporation, Pune ...Petitioner vs. Mahendra Nivrutti Dhawade & Ors. ...Respondents Mr.S.M. Gorwadkar for the Petitioner. Mrs.P.P.Bhosale, APP for the State. Mr.Mahendra N. Dhawade, Respondent No.1 present in person. CORAM : V.M. KANADE, J. DATED : MARCH 15, 2010 P.C. :- 1 Heard Counsel for the petitioner and respondent no.1 appearing in person. 2 By this petition which is filed under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C., the petitioner is challenging order dated 5th January, 2009 passed at 2 Exhibit 12 in Criminal Case No.407 of 2008 filed by respondent no.1 against the respondent no.2 passed by the Additional Chief Judicial Magistrate, Pune. Respondent no.1 is the original complainant and the complaint filed by him against respondent no.2 is pending before the Additional Chief Judicial Magistrate, Pune, for offences punishable under Sections 409, 420, 465, 467, 471 of the IPC. The learned Magistrate was pleased to pass an order under Section 156(3) of Cr.P.C. and directed the police to investigate. The Investigating Officer by his report submitted that no offence was made out by the alleged complaint. 3 Respondent no.1, however, submitted an application for examining witnesses in support of his complaint and request was made to issue witness summons to the petitioner who is a Municipal Commissioner and some other witnesses. Accordingly, witness summons was issued to the petitioner and the other witnesses. 3 4 The petitioner has filed an application at Exhibit 12 and requested that the witness summons issued to the petitioner may be cancelled. It was submitted that it was not necessary to issue witness summons to the Administrative Head of the local authority for the production of documents and therefore, it was a clear case of abuse of process of law. Reliance was placed on the judgment of the Apex Court in AIR 2008 SC 86. The learned Magistrate passed an order on the said application and stated that respondent no.1 may file a separate application after sometime. Accordingly, after both the witnesses were examined by the complainant, a fresh application was filed for issuing witness summons to the petitioner herein which application was granted. Counsel for the petitioner submitted that it is not necessary to call the Municipal Commissioner for the production of documents since 4 any other officer would be summoned to produce the documents which are in possession of the Corporation. Secondly, it was submitted that all these documents also will be secured by the complainant under the RTI Act. Thirdly, it was submitted that the complaint was filed in respect of a period during which the present Commissioner was not in-charge and therefore, no point would be served in examining the present Municipal Commissioner. 6 Respondent no.1, on the other hand, submitted that he wanted to examine the present Municipal Commissioner since it was during his tenure the enquiry has been initiated and various orders have been passed by this Municipal Commissioner as a result of which the Additional Municipal Commissioner and others took further steps in the matter. 7 After having heard both the Counsel for the 5 petitioner and respondent no.1 in person, in my view, this is not a fit case where the impugned order of issuance of summons should be quashed or set aside, more particularly, respondent no.1 has clarified that he does not wish to call the Municipal Commissioner only for the purpose of producing documents but also for the purpose of examining him as witness in the case. Hence, the submission made by the learned Counsel appearing on behalf of the petitioner is not accepted. 8 Writ petition, accordingly, is disposed of. (V.M. KANADE, J.)