SCR.A/69820/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 698 of 2008 With CRIMINAL MISC.APPLICATION No. 5919 of 2008 In SPECIAL CRIMINAL APPLICATION No. 698 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================= === 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial 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 civil judge ? ========================================= === BHIMAJI GIRDHARIJI MALI - Applicant(s) Versus STATE OF GUJARAT & 7 - Respondent(s) ========================================= === Appearance : MR CL SONI for Applicant(s) : 1 - 7. MR RC KODEKAR ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, MR VIRAT G POPAT for Respondent(s) : 2, ========================================= === CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 28/07/2008 ORAL JUDGMENT SCR.A/69820/2008 2/4 JUDGMENT 1. Heard learned advocates appearing for the parties. 2. Rule. Mr. R.C.Kodekar, learned APP, waives service of rule on behalf of respondent No.1-State. 3. The challenge in this petition is the order passed by the Revisional Court on 29.2.2008 in Criminal Revision Application No.12/2008 by the learned Additional Sessions Judge, Banaskantha at Deesa, by which the learned Magistrate is directed to take the Criminal Case on register of the Court below and to give number to such criminal case and to issue summons against the petitioners-original accused under Sections 302, 323, 504 and 114 of the Indian Penal Code. 4. Mr. C.L.Soni, learned advocate, for the petitioners has contended that by issuing the impugned order, the learned Revisional Court has exceeded in his jurisdiction by passing the order of taking the criminal case on register and to issue summons for the offences under Section 302 and other offences. 4.1. Upon issuance of notice on 15.4.2008, ad-interim relief came to be granted. 5. Mr. V.G.Popat, learned advocate, for respondent No.2- complainant filed Criminal Misc. Application No. 5919/2008 for vacating interim relief granted by this Court on 15.4.2008 and submits that cognizance of the offence cannot be taken by the SCR.A/69820/2008 3/4 JUDGMENT magistrate unless inquiry under Section 202 of the Code of Criminal Procedure is under taken. 6. Mr. Soni, learned advocate of the petitioners submits that an agreement to the extend is made that if this Court directs the concerned learned Magistrate to exercise the powers contained in Chapter 14 of the Code of Criminal Procedure and to that extend the order of the learned Revisional Court can be set aside. 7. Having heard learned advocates appearing for the parties and considering the decisions of the Apex Court in the case of H.S.Bains v. The State (Union Territory of Chandigarh) reported in AIR 1980 SC 1883 and in the case Anuragh Rastogi and Ors. vs. State of U.P. and Anr. reported in (2007) 4 SCC 771, wherein the direction of the learned Revisional Court to the extent to register the criminal case under Section 302 etc. is clearly without jurisdiction and, therefore, the learned Magistrate concerned is justified in taking action under Section 200 of the Code and if need be, further action under Section 202 of the Code. Since the order of the Revisional Court is contrary to law to that extent the same is set aside and it will be open for the concerned Magistrate to exercise power under Chapter 15 of the Code. 8. Since the matter is pending for quite a long time, the concerned Magistrate shall consider the above aspect and pass the order accordingly. 9. Petition is allowed. Rule is made absolute. SCR.A/69820/2008 4/4 JUDGMENT [ANANT S. DAVE, J.] //smita//