(1) CRI.WP. 394.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.394 OF 2010 Babasaheb Dhondiram Mundhe Age : 37 years, Occu.: Agriculture, R/o Khandali, Tq. Gangakhed, Dist. Parbhani .. Petitioner VERSUS 1. The State of Maharashtra (Copy to be served in the Office of Public Prosecutor, Bombay High Court, Bench at Aurangabad) 2. Vikram Bhograj Malve, Age : 50 years, Occu.: Agriculture, R/o Khandali, Tq. Gangakhed, Dist. Parbhani .. Respondents Mr. S.V. Mundhe, Advocate for the Petitioner Mrs. B.R. Khekale, APP for the respondent-State Mr. B.R. Kedar, Advocate for the respondent no.2 ... CORAM : V.R. KINGAONKAR, J. DATED : 7TH SEPTEMBER, 2010 ORAL ORDER:- 1. This Petition is filed under Article 227 of the Constitution of India seeking quashing of judgment and order rendered by the learned Additional Sessions Judge in Criminal Revision Application no. 1 of 2010 confirming the issuance of process order in (2) CRI.WP. 394.2010 RCC no.138 of 2008 rendered by learned Judicial Magistrate (F.C.), Gangakhed, on 8.12.2009. 2. The respondent no.2 is original complainant. He initially filed report with the Police while he was admitted in the Government Hospital at Gangakhed alleging that on 19.1.2008 at about mid-day, the petitioner alongwith others entered his house, enquired with him as to why he had sought information about the work done by the Gram Panchayat as per the provisions of the Right to Information Act and thereafter assaulted him. He further alleged that he and his wife were injured as a result of the assault. He alleged further that an amount of Rs.54,000/- alongwith the gold ornaments were taken away from his residential house by the petitioner and others. It appears that the Police investigated into the complaint and filed chargesheet against the applicant and others vide RCC no. 82 of 2008. He again filed another complaint alleging that process was required to be issued for offence under section 395 of the Indian Penal Code and other sections of the Indian (3) CRI.WP. 394.2010 Penal Code which were omitted while filing of the chargesheet. The learned Magistrate directed the same to be produced before the concerned Court dealing with RCC no. 82 of 2008. The respondent no.2 was not satisfied with such action and again filed third complaint. He adduced evidence in support of the third complaint. After enquiry under section 202 of the Code of Criminal Procedure, the learned Magistrate directed issuance of process for offence under section 395 of the Indian Penal Code against the original accused nos. 1 to 5 and under section 166 of the Indian Penal Code against original accused no.6. This resulted into commencement of another Criminal case vide RCC 138 of 2008. 3. The petitioner challenged the order of issuance of process by filing revisional application which came to be dismissed. 4. Learned Advocate Mr. Mundhe argued for the petitioner that filing of the same type of complaint again and again would amount to abuse of the process of law. He argued that when the first complaint was (4) CRI.WP. 394.2010 duly investigated and no offence was made out under section 395 of the Indian Penal Code or under section 166 of the Indian Penal Code, the filing of the similar complaint and enquiry there-into was unwarranted. He contended that such kind of order is likely to encourage filing of repeated complaints for the same incident and the matter would become endless. 5. The submissions of Mr. Mundhe cannot be the legal grounds to interfere in the discretionary powers of the learned Magistrate and the learned Sessions Judge in the context of the issuance of process. It is important to notice that the respondent no.2 filed earlier complaint for the same offence alleging that the petitioner alongwith other accused persons had taken away the cash amount and gold ornaments from his house after beating him and his wife. Part of the story narrated by the respondent no.1 was found believable by the Investigation Officer and therefore chargesheet was filed to the extent of the offences which were made (5) CRI.WP. 394.2010 out. That would not mean total bar created due to filing of the chargesheet in filing of the same complaint for enquiry under section 202 of the Code of Criminal Procedure. There is no prohibition under the law to dis-allow filing of similar complaint again and again. If the Magistrate found certain substance under section 202 of the Code of Criminal Procedure after due enquiry and decided to take cognizance of the offences for which chargesheet was not filed, it cannot be stated that per-se illegal orders are rendered. The revisional Court also found prima facie material and held that the order of the learned Magistrate is not perverse. The only proper course in such a case is to club both the Criminal cases together and to direct the learned Magistrate to take further course of action, may be of committal of the case after enquiry as contemplated under section 210 of the Code of Criminal Procedure or to discharge some of the accused if there is no material found during course of enquiry. The petitioner will be at liberty to participate in the enquiry which is required to be undertaken before the commital. (6) CRI.WP. 394.2010 6. In the result, the Writ Petition is dismissed with direction that the learned Magistrate shall take appropriate action for clubbing of both the matters together and to decide further course of action in accordance with law. Sd/- [V.R. KINGAONKAR, J.] arp