1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3264 OF 2009 Byraraju Ramalinga Raju & Anr. ..Petitioners Vs. The State of Maharashtra & Ors. ..Respondents Mr. S.R.Chitnis, Ar. Advocate with Mr. S.R.Garod i/b Khaitan & Jaikar for the Petitioners Mr. Amit Desai, Sr. Counsel with Ms. Dimple Shah and Mr. Zarick Dastur and Ms. Khursheed Vajifdar i/b J. Sagar Asso for Respondent No.3 Mr. A.S.Shitole, APP for State Mr. C. Antony Lowis, Respondent No.2 present in person CORAM : S.C.DHARMADHIKARI, J. DATE : 19th January, 2010. P.C. : 1. By this Writ Petition the Petitioners are challenging the order passed by the Learned Magistrate directing the issuance of 2 production warrant for their production before the Chief Metropolitan Magistrate, Esplanade Court, Mumbai in CCNo. 0100026/SW/09. The Petitioners are the original Accused Nos.1 and 2, whereas the Respondent No.2 before me is the original Complainant. The Petitioners have impleaded original Accused Nos.31 and 32 as Respondent Nos. 3 and 4 to this Petition. 2. The grievance made by Mr. Chitnis Senior Counsel appearing on behalf of the Petitioners’, is that, an application was made by the Petitioners invoking the Trial Court’s jurisdiction under section 210 of the Cr.P.C. The Application made in that behalf is kept pending. The Learned Magistrate at one stage had observed that until this application is disposed of the Petitioners need not be produced. They were exempted from personal appearance, as both the Petitioners were represented by an Advocate. However, within a short span of time the Learned Magistrate took cognizance of an 3 Application made for issuance of production warrant and passed the impugned order. 3. On the other hand the Complainant appearing in person urged that, the Petitioners have not appeared till date, although summons is duly served. The offences alleged are serious. The Complainant states that he has made out a prima facie case against the Petitioners in respect of the offence of cheating, criminal mis-appropriation and forgery. Merely because the Petitioners are being prosecuted before the Court at Hyderabad, is no ground to exempt them and they have been rightly directed to be produced. The matter has been unnecessarily delayed. Therefore, he states that the order is justified and require no interference. 4. On this petition, this Court directed notice to be issued and stayed the impugned order. In the mean while, after notice was issued, the matter was mentioned and, therefore, taken 4 up by consent of parties. At the out set, the original Complainant appearing in person apologises to the Court, so also the Advocates appearing for the Petitioners for writing letters containing derogatory remarks. He states that in sheer anguish and agitated by the delay, he wrote the subject communication. He regrets for having written such letters and apologises to all concerned. The apology is, therefore, accepted. 5. As far as, the order passed by the Learned Judge is concerned, it is apparent that the Learned Judge had before him, an application which was made after issuance of process and service of summons. That application was made by the Petitioners requesting for personal exemption. That application was granted. Thereafter, an application was made by the Petitioners under Section 210 of Cr.P.C. That application was taken on file and the learned Magistrate directed the Complainant to submit his say. The Application 5 is dated 06.03.2009. The Complainant thereafter, filed his say to this Application and a copy of the same is annexed as “Annexure- H” to this Petition. It is clear that the Accused No. 32 was not served initially and, therefore, the Chief Metropolitan Magistrate passed an order dated 06.03.2009 directing issuance of fresh summons to Accused No.32. He adjourned the Application under section 210 of Cr.P.C. of the Petitioners to 09.04.2009. He exempted the Petitioner for a day only. However, in the order passed on 6th March 2009, he had referred to the pendency of the Application under section 210 of Cr.P.C. On the adjourned date, the application for exemption was once again made. The Learned Judge has exempted the Petitioners from appearance on 09.04.2009. Whenever the matter has been adjourned, an Application for exemption has duly been made. It is not as if the Petitioners were not represented by the Advocate. Therefore, when the Petitioners application under Section 210 of Cr.P.C. was pending and the Learned Judge also exempted the Petitioners 6 from appearance as to why suddenly the production warrant has been issued on 30.11.2009, is not clear from the order. In the peculiar facts of the case, the Learned Judge would have been well advised to have disposed off the Application made by the Petitioners under Section 210 of the Cr.P.C. on merits and in accordance with law. He has kept that application pending, exempted the Petitioners from personal appearance and at the same time has issued production warrant. All this appears to be some what confusing and contradictory. In such circumstances, I am of the opinion that the Writ Petition can be disposed of by the following order: (i) The Chief Metropolitan Magistrate is directed to be dispose off the Petitioners application under Section 210 of Cr.P.C. within a period of four weeks from the date of the receipt of the copy of this order. 7 (ii) For a period of 6 weeks from today, the ad-interim order granted by this Court on 16.12.2009 shall continue. However, its continuance will not prejudice the rights and contentions of the parties. (iii) It is clarified that this Court has not expressed any opinion on the merits of the application and all contentions of the Petitioners as well as the Respondents are kept open. (iv) The Writ Petition is disposed of. (S.C.DHARMADHIKARI, J.)