bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1475 OF 2007 PETITION NO. 1475 OF 2007 PETITION NO. 1475 OF 2007 Shri Baburao Anna Mallade ... Petitioner v/s Shri Nemgonda Jingonda Patil & ors. ... Respondents Mr.Vijay Killedar for the petitioner. Mr.Amit Sale for respondent Nos.1 and 2. Mr.P.A.Pol, A.P.P. for the respondent No.3 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 23RD APRIL, 2008 23RD APRIL, 2008 23RD APRIL, 2008 P.C. P.C. P.C.: 1. Rule. Rule made returnable forthwith. 2. This petition has been filed for quashing the judgment and order dated 12.6.2007 passed by the Additional Sessions Judge, Jaysingpur in Criminal Revision Application No.12 of 2007 arising out of R.C.C. No.20 of 2007. 3. The petitioner has filed a complaint bearing R.C.C.No.20 of 2007 against the respondent Nos.1 and 2 alleging that the offences punishable under Sections 465, 406, 408, 471, 474 read with Section 34 of the 2 Indian Penal Code have been committed by the accused. 4. By an order dated 21.2.2007, the Judicial Magistrate First Class, Jaysingpur postponed the issuance of process under Section 202 of the Code of Criminal Procedure directing further investigation in the matter. Aggrieved by this order of the Judicial Magistrate First Class, respondent Nos.1 and 2 preferred Criminal Revision Application No.12 of 2007. The Additional Sessions Judge, Jaysingpur, by an order dated 12.6.2007 set aside the order of the learned J.M.F.C. directing further investigation in the matter. 5. Mr.Killedar, learned advocate appearing for the petitioner contends that the revision was not maintainable before the Sessions Court as the order passed by the J.M.F.C. was an interlocutory order. He submits that under Section 397(2) of the Code of Criminal Procedure, a revision is maintainable only against the final order. He then submits that in any event the respondents/accused had no locus-standi and are not entitled to be heard on the question whether the process should be issued against them in proceedings under Section 202 of the Code of Criminal Procedure. Reliance is placed on the judgment of the Supreme Court on Smt.Nagawwa v/s Veeranna S. Konjalgi & ors., Smt.Nagawwa v/s Veeranna S. Konjalgi & ors., Smt.Nagawwa v/s Veeranna S. Konjalgi & ors., 3 reported reported reported in A.I.R. 1976 SC 1947. in A.I.R. 1976 SC 1947. in A.I.R. 1976 SC 1947. My attention has also been drawn to the judgment of this Court in Securities Securities Securities and and and Exchange Board of India v/s Hindustan Lever Ltd. & Exchange Board of India v/s Hindustan Lever Ltd. & Exchange Board of India v/s Hindustan Lever Ltd. & anr., anr., anr., reported in 2002 ALL MR (cri) 2142. reported in 2002 ALL MR (cri) 2142. reported in 2002 ALL MR (cri) 2142. 6. The learned advocate for the respondent Nos.1 and 2 contends that the order passed by the J.M.F.C. was, in fact, not an interlocutory order but an order which affected his right and, therefore, a revision was maintainable. He relies on the judgment of the Supreme Court in the case of Bhaskar Industries Ltd. v/s Bhaskar Industries Ltd. v/s Bhaskar Industries Ltd. v/s Bhiwani Bhiwani Bhiwani Denim & Apparels Ltd. & anr., reported in Denim & Apparels Ltd. & anr., reported in Denim & Apparels Ltd. & anr., reported in 2002(1) 2002(1) 2002(1) Mh.L.J. 81, Mh.L.J. 81, Mh.L.J. 81, to submit that the Supreme Court has laid down the simplest test to determine when the parties can move the Court in revision against an order passed by a subordinate Court. 7. Section 202 of the Code of Criminal Procedure reads thus - "Sec. Sec. Sec. 202: Postponement of issue of 202: Postponement of issue of 202: Postponement of issue of process.- process.- process.- (1) Any magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as 4 he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by the Code on an officer in charge of a police station except the power to arrest without warrant." 8. After the order is passed, the Magistrate has discretion either to dismiss the complaint under Section 203 or to dispose it of under Section 204. Passing of the order under Section 202 would not give rise to any final order against the accused. The Magistrate merely postpones the issuance of process as he feels that it would be necessary for further investigations in the matter, before any decision can be taken as to the 5 dismissal of the complaint or issuance of the process. 9. The Supreme Court in the case of Smt.Nagawwa v/s Smt.Nagawwa v/s Smt.Nagawwa v/s Veeranna Veeranna Veeranna S. Konjalgi & ors. S. Konjalgi & ors. S. Konjalgi & ors. has held that the scope of the enquiry under Section 202 is extremely limited and the accused has got absolutely no locus-standi and is not entitled to be heard on the question whether the process should be issued against him or not. It has further been held that the Magistrate can take into consideration inherent improbabilities appearing in the case of the complainant while considering whether there is an established or prima facie case against the accused. Once the Magistrate exercises his discretion, it is not open for either the High Court or the Supreme Court to substitute its own discretion for that of the Magistrate. It has further been observed that the scope of the enquiry under Section 202 which culminates into an order under Section 204 is different from the enquiry to be held under Sections 202 or 203. In these circumstances, in my opinion, the petitioner has rightly contended that the revision was not maintainable before the Sessions Court since the accused had no locus standi in an enquiry under Section 202 of the Code of Criminal Procedure. 10. In the case of Securities and Exchange Board of Securities and Exchange Board of Securities and Exchange Board of 6 India India India v/s Hindustan Lever Ltd v/s Hindustan Lever Ltd v/s Hindustan Lever Ltd.(supra), the learned Single Judge of this Court has observed that the accused can neither be heard nor can the Magistrate consider the documents produced by him at the stage of the proceedings pending under Section 202 of the Code of Criminal Procedure. In such a situation, in my opinion, the revision filed by the accused is not maintainable. 11. Apart from this, in the case of Bhaskar Industries Bhaskar Industries Bhaskar Industries v/s v/s v/s Bhiwani Denim & Apparels Ltd Bhiwani Denim & Apparels Ltd Bhiwani Denim & Apparels Ltd. (supra), the Supreme Court has described a safe test for deciding whether the powers of revision can be exercised in relation to any order thus - "If the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate ? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage." Issuance of an order under Section 202 of the Code of Criminal Procedure would not culminate the criminal proceedings in any circumstances. Thus the revision was not maintainable. The order passed by the Sessions 7 Court is, therefore, quashed. 12. Rule is made absolute in terms of prayer clause (b). No order as to costs.