Criminal Revision No. 140/2015. Case: Mallika Sherawat Vs State of Maharashtra and Ors.. High Court of Bombay (India)
| Case Number | Criminal Revision No. 140/2015 |
| Counsel | For Appellant: A.S. Chakotkar, Advocate and For Respondents: Rashi Deshpande, A.P.P. |
| Judges | A. B. Chaudhari, J. |
| Issue | Cinematograph Act, 1952 - Sections 5A, 5B, 5D; Code of Criminal Procedure, 1973 (CrPC) - Sections 200, 201, 202, 203, 204, 397, 482; Indian Penal Code 1860, (IPC) - Sections 292, 79 |
| Judgement Date | October 29, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
A. B. Chaudhari, J.
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This application is ordered to be converted in Criminal revision. Counsel for the applicant to carry out amendment forthwith.
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Following is the prayer in this revision application:
(i) To quash and proceeding vide Criminal Complaint No. 27/2009, as well as the order taking cognizance dated 13.04.2009 and subsequent orders issuing processes pending before the JMFC at Pandharkawda (Kelapur) against the applicant/accused under Section 292 of IPC.
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When this application was called out for hearing on 27.10.2010, learned counsel for the applicant Mr. Chakotkar, prayed for adjournment and counsel for non applicant no.2 was absent. It was, therefore, adjourned for today in order to give opportunity to both the sides. Today, again counsel for the applicant seeks adjournment while counsel for non applicant no.2 is absent. The present revision application relates to the year 2010. It is not possible to adjourn the proceedings in the manner sought by counsel for the applicant, nor for the absence of the non applicant no.2.On one hand, there is a cry about pendency of cases and on the other hand, adjournments are sought. Be it as it may.
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Heard learned A.P.P. for the State. Perused the record.
Non applicant no.2 filed a private Criminal Case No. 27/2009, probably pro bono publico, in the court of Judicial Magistrate First Class, Pandharkawda-Kelapur on 08.04.2009 on which the Court ordered 'to put up the case for verification'. It appears that, thereafter, the learned trial Judge examined the complainant and three witnesses namely; Rajendra Chavan, a mechanic, Shankar Badhe, Vice President of Municipal Council and Ankush Soyam, a carpenter. The Court then passed the order issuing process on 28.04.2009 returnable on 08.06.2009. He recorded some reasons in paragraph 2 of the impugned order. The impugned order does not show how the trial Court was satisfied in issuing the process against the applicant, though it shows that he was satisfied on the basis of oral as well as documentary evidence without mentioning which one. In my opinion, this is no satisfaction.
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It is true that at the stage of issuance of process under Section 204 of Cr.P.C., detailed enquiry regarding merit or demerit of the cases is not required. It is also true that the proposed accused cannot participate at this stage before the Magistrate. But then there is a duty and responsibility of the Magistrate to find out whether there is a legal evidence or materials to form an "opinion" and existence of "sufficient ground" which are the key words used in Section 204 of Cr. P. C. before making an order of issuance of process. Summoning an accused is a serious matter with serious consequences on the reputation and status of a person and criminal law cannot be set in motion as a matter of course. It is the duty of the Magistrate to examine whether the complaint is based under any law or whether there is any settled legal position qua the allegations in the complaint. In this case, the trial Judge did not advert to provisions of the Cinematograph Act or decision in the case of Raj Kapoor..vs..Laxman, AIR 1980 SC 605.
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Even otherwise, on...
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