IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1941 OF 2007 Smt.Kamal Yashwant Thakur .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents Mr.Prathamesh B. Bhargude for the petitioner. Mr.J.P.Yagnik, A.P.P for the State. Mr.P.G.Sawant for respondent Nos.2 and 3. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 04th August 2008. P.C.: . Heard learned counsel appearing for the petitioner. The petitioner filed a private complaint alleging commission of offence against the 2nd and 3rd respondents under section 323 read with section 34 of the Indian Penal Code. On the said complaint the learned Magistrate passed an order directing the investigation under section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). The police submitted a report against the petitioner. After considering the report and the statement of witnesses recorded by the police during the investigation, the learned Magistrate issued process for offence punishable under section 323 read with section 34 of the Penal Code. The said order was challenged by : 2 : the 2nd and 3rd respondents by filing a revision application. By the impugned judgment and order dated 05th September 2007 the learned Adhoc Additional Sessions Judge has interfered and has dismissed the complaint. 2. The learned counsel appearing for the petitioner submitted that after considering the report of the police and material collected during investigation, a discretionary order was passed by the learned Magistrate issuing process and therefore, the said order could not have been interfered with in a limited jurisdiction under section 397 of the said Code. He placed reliance on a decision of the Apex Court in the case of Smt.Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors. [(1976) 3 Supreme Court Cases 736]. He submitted that once the learned Magistrate exercised discretion by issuing process it was not for the Sessions Court or as a matter of fact for this Court to substitute its own discretion for that of the learned Magistrate. Inviting my attention to various observations made by the Sessions Court, he submitted that some of the observations are totally contrary to the averments made in the complaint. He placed reliance on a decision of the learned single Judge of this Court in the case of : 3 : Uttam s/o. Krishnaji Levarkar Vs. State of Maharashtra & Ors. [1996 (1) B.C.R. 95]. Relying upon the said decision he submitted that the 2nd and 3rd respondents could have always appeared before the learned Magistrate and satisfied him that there was no material to proceed against them. 3. I have carefully considered the submissions. I have also perused the averments made in the complaint as well as the statements of the witnesses recorded by the police. The 2nd and 3rd respondents are stated to be the neighbours of the petitioner. It is stated in the complaint that the relationship between them is not cordial. There are various allegations made in the complaint. Some of the allegations do not relate to commission of alleged offence punishable under section 323 of the Penal Code and therefore, I am not referring to the said allegations. Reference has been made to the earlier police complaint lodged by the petitioner. It is stated that as per the routine procedure chapter proceedings were initiated before the Assistant Commissioner of Police. It is stated that after the 2nd respondent received the summons of the chapter proceedings, she stood in front of her door and abused the son of the petitioner in very filthy language. It : 4 : is stated that the 2nd respondent entered the premises of the petitioner and started assaulting the son of the petitioner. When the petitioner tried to intervene, the 2nd respondent assaulted her with the help of 3rd respondent. After investigation, the police submitted a report in which it is stated that there is no material to show that the 2nd respondent entered the house of the petitioner and made an assault. Statement of the son of the petitioner was recorded by the police. In the said statement he merely stated that after summons of the chapter case was served to the 2nd and 3rd respondents, the said respondents came and abused him and threatened him. In the said statement the son of the petitioner did not state that 2nd and 3rd respondents assaulted him. I am not concerned with the other allegations made by the son of the complainant as the said allegations do not relate to an offence under section 323 of the Penal Code. Even in the statement of the petitioner recorded by the police she has not disclosed the alleged incident of assault of 04th January 2006. Considering these aspects, the Sessions Court has interfered. Even going by the decision of the Apex Court in the case of Smt.Nagawwa (supra) relied upon by the petitioner, a revisional Court can always interfere when the order of the Magistrate issuing process is based on no evidence : 5 : or material. Moreover, the Sessions Court can always interfere when the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. When the petitioner and her son did not disclose incident of the assault during the course of the investigation by the police, this was a case where interference was rightly made by the Sessions Court. The reliance placed on the decision of the learned Single Judge in the case of Uttam Levarkar (supra) will not help the petitioner as the said decision is based on the decision of the Supreme Court in the case of K.M.Mathew v. State of Kerala (A.I.R 1992 Supreme Court 2206) which is no longer a good law. In the circumstances, no case is made out for interference. Petition is accordingly dismissed. (A.S.Oka,J)