1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.320 of 2006 Date of decision:24/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/320-06crra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.320 of 2006 Jainarayan s/o Mohanlal Sharma, age 49 years, occ: Nil, r/o Kavtha, Tq. & Dist.Nanded. ...PETITIONER VERSUS 1. The State of Maharashtra Through Police Station Vajirabad, Nanded. 2. Meenabai w/o Ajit Rathod, Aged 42 years, Occ: Household, r/o. Old Mondha, Nanded, Tq. & Dist.Nanded. ...RESPONDENTS (No.2 Ori.complainant) ... Mr. M.K.Deshpande, Adv., for the applicant. Mrs.B.R.Khekale, APP, for respondent no.1. Mr.A.M.Gaikwad, Adv., for respondent no.2. ... CORAM : K.U.CHANDIWAL, J. DATE : 24/9/2009 *** ORAL JUDGMENT: 1. Heard the Counsel. Rule. By consent of the parties, the matter is finally heard. 2. In a prosecution based on a complaint lodged before the Chief Judicial Magistrate, 3 Nanded, vide RCC No.279/1999, for an offense punishable under Section 306 of IPC, the learned Chief Judicial Magistrate directed investigation in terms of Section 156(3) by order dt.12.4.2001. Thereafter, committal order is recorded by the learned Judge on 15.1.2003. Same was subject of challenge on behalf of the accused in a revision being Revision No.12/2003. The learned Sessions Judge, Nanded, by his order dt.4th Feb.,2003, recorded as under: " The revision petition allowed. Both the impugned orders dated 12.04.2001 and 15.01/2003 in respect of taking of cognizance by learned Chief Judicial Magistrate, Nanded, are hereby quashed. The learned Chief Judicial Magistrate, Nanded, is directed to take necessary steps under Chapter-XV of the Code of Criminal Procedure on the basis of report received from P.S.O. of Police Station, Vazirabad, Nanded. In the meanwhile, revision petitioner be released on bail if P.B. andS.B. in sum of Rs.10,000/- (Rs. ten thousand) is furnished. Bail in Trial Court. " 3. The grievance of Counsel for the accused/revision petitioner is when specific directions were given to adhere in terms of Chapter XV of Cr.P.C., there was no escape left 4 to the learned Chief Judicial Magistrate to obviate the same and adopt recourse based only on the statements recorded by the investigating officer. 4. Learned Counsel rightly took recourse to the mandate in terms of Section 202 sub clause (2) proviso thereof of Cr.P.C. which obligates the learned Magistrate that, if offense complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. 5. The mistake committed by the learned Chief Judicial Magistrate is: he, did not follow the direction of the revisional Court in terms of Chapter XV of Cr.P.C. - he has obviously obliterated the effects of Section 202(2), with proviso, Cr.P.C. 6. In M.Govindraja Pillai Vs. Thangavelu Pillai (deceased by L.Rs.) and others (1983 CRI.L.J. 917), the position was considered specifically with reference to Section 202(2) and in terms of Section 209 of Cr.P.C. 7. The learned Chief Judicial Magistrate has not adhered to the procedure in terms of Section 202(2) and proviso thereof, where case is 5 triable exclusively by the Court of Sessions, the Magistrate could not have taken resort to the procedure under Section 156(3) Cr.P.C. and acted blindly on the investigation carried by the investigator and then committed the case to the Sessions Court. 8. The learned 1st Ad hoc Additional Sessions Judge, Nanded, by order dt.25.8.2006, did not consider the basic procedural flaw. 9. Without adverting to the merits of the case, the matter is remitted back to the learned Chief Judicial Magistrate, Nanded, to consider the same in terms of Section 202(2), proviso thereof, Cr.P.C. and pass appropriate order. The order of the learned 1st Ad hoc Additional District Judge, Nanded, passed below Exh.10, in Sessions Case No.154/2005, in fact situation, is set aside. Rule made absolute accordingly. ( K.U.CHANDIWAL) JUDGE agp/320-06crra