High Court
Facts
1 Cri.wp 733-2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 733 OF 20241.Sambhaji s/o Shivaji More,Age : 31 years, Occu. : Agri.,2.Vitthal s/o Ramrao More,Age : 64 years, Occu. : Agri.,3.Ranjit Vitthalrao More,Age : 34 years, Occu. : Agri.,All R/o. : Valag, Tq. Degloor,Dist. Nanded... Petitioners(Orig. accused Nos. 1, 2 & 3 respectively)Versus1.The State of MaharashtraThrough P.S.O., Ramtirth Police Station,Tq. Naigaon, Dist. Nanded.2.Uttamrao s/o Datta Patil,Age : Nil, Occu. : Agri.,R/o. : Valag, Tq. Degloor,Dist. Nanded... Respondents (Orig. Complainants)WITHCRIMINAL WRIT PETITION NO. 731 OF 20241.Sambhaji s/o Shivaji More,Age : 31 years, Occu. : Agri.,2.Ranjit Vitthalrao More,Age : 34 years, Occu. : Agri., 1 of 13 2 Cri.wp 733-2024.odtAll R/o. : Valag, Tq. Degloor,Dist. Nanded... Petitioners(Orig. accused Nos. 1, 2 respectively)Versus1.The State of MaharashtraThrough P.S.O., Ramtirth Police Station,Tq. Naigaon, Dist. Nanded.2.Uttamrao s/o Datta Patil,Age : Nil, Occu. : Agri.,R/o. : Valag, Tq. Degloor,Dist. Nanded... Respondents (Orig. Complainants)Mr. Ajinkya Reddy, Advocate for the Petitioners in both the matters.Mr. R. B. Dhaware, APP for Respondent No. 1 in both the matters.Mr. V. R. Dhorde, Advocate for Respondent No. 2 in both the matters. CORAM : KISHORE C. SANT, J.Date on which reserved for order : 03rd July, 2025.Date on which order pronounced : 29th July, 2025. FINAL ORDER :- .Since in both the petitions the parties are same and since theissue involved is also similar, both the matters are taken uptogether. 2 of 13 3 Cri.wp 733-2024.odt2.Heard. By consent of the parties taken up for final disposal.3.Criminal Writ Petition No. 733/2024 is filed by originalaccused persons in Criminal M.A. No. 105/2021 challenging anorder of issuance of process in the said Criminal M.A. dated20.01.2022 for the offencess punishable under Sections 384, 506,511 r/w Section 34 of the Indian Penal Code (for short “I.P.C.”). InCriminal Writ Petition No. 731/2024, a prayer is for quashing andsetting aside the order dated 16.03.2021 passed in R.C.C. No.191/2019 by the learned J.M.F.C., Degloor thereby issuing processagainst the petitioners for offences punishable under Sections 457,380, 506 r/w Section 34 of the I.P.C. The petitioner Nos. 1 and 3in Criminal Writ Petition No. 733/2024 are the petitioners inCriminal Writ Petition No. 731/2024.4.The facts in short in Criminal Writ Petition No. 733/2024are that, respondent No. 2 filed miscellaneous application seekingdirections under Section 156(3) of the Code of CriminalProcedure (for short “Cr.P.C.”). It is the allegation that, thecomplainant happens to be President of one Ashram school atValag, District Nanded. The complainant is related to accused 3 of 13 4 Cri.wp 733-2024.odtNo. 1 as accused No. 1 happens to be brother in law of son of thecomplainant. Accused Nos. 2 and 3 are the uncle and cousin ofaccused No. 1. The petitioner Nos. 1 to 3 are accused Nos. 1 to 3respectively. It is alleged that, there is dispute about the land ofthe Ashram school. The accused persons started asking fortransfer or to change the location of the school. It is threatenedthat, if the school is not transferred to any other school, theaccused will abduct the children from the school. These threatswere given to the employees in the school. On 02.02.2019 as perthe allegation, the petitioners asked one of the employee in theschool as to whether he has brought Rs. 1,00,000/-. On replyingin negative, the accused Nos. 1 and 2 put a sharp weapon named‘Katti’ on the neck of the employee and threatened that they willcut his body in two pieces. It is thereafter, the complainant wentto Police Station Markhel, however, the Police refused to registeran offence. The application was also made to DeputySuperintendent of Police, Nanded. Office of DeputySuperintendent of Police told the complainant to approachMarkhel Police Station again. However, still no complaint wastaken. The complainant, therefore, filed an application before the 4 of 13 5 Cri.wp 733-2024.odtlearned J.M.F.C. The learned J.M.F.C. on recording verificationstatement of the complainant and witnesses issued process againstthe accused persons. 5.So far as facts in Criminal Writ Petition No. 731/2024 areconcerned, the complainant approached the learned J.M.F.C. byfiling Criminal Miscellaneous Application. It is stated in thecompliant that, sister of petitioner No. 1 married to son of thecomplainant. The marriage took place on 21.05.2010. On08.03.2018 there was incident of fire in the bedroom of the sisterof present petitioner No. 1 and she died in the said incident. It isalleged that, since sister of accused No. 1 died, the accusedpersons started blackmailing the complainant and demanded theland of Ashram school with Ashram school. There was a meetingof people. In the said meeting, the complainant flatly refused togive the school as it belongs to a Trust. On this, the accusedpersons lodged the FIR with the Police Station against thecomplainant, his sons and wife. It is further alleged that,thereafter, the accused persons started demanding an amount ofRs. 1,00,000/- as ransom and further to shift the school to someother place, otherwise they will abduct the students from the 5 of 13 6 Cri.wp 733-2024.odtschool. It is alleged that, on 02.02.2019 they threatened one ofthe employees. Therefore, again complaint was tried to be lodgedwith the Police and the Deputy Superintendent of Police, Nanded.However, since no cognizance was taken and no offence wasregistered, an application is filed praying for directions underSection 156 (3) of the Cr.P.C. for the offences punishable underSections 383, 307, 511, 506 (2) r/w Section 34 of the I.P.C. Thelearned Magistrate directed to put up the complaint forverification of complainant and witnesses and thereafter issuedprocess. Thus, these orders are challenged in these petitions.6.The learned A.P.P. and learned advocate for respondent No. 2raised preliminary objection of maintainability of the petitions inview of availability of alternative remedy of filing of a revision. 7.On the point of maintainability, the learned advocate Mr.Reddy for the petitioners submits that, alternative remedy is notan absolute bar. He further vehemently argued that, both thecomplaints are imaginary. It is the case that, the sister of accusedNo. 1 died in the house of son of the complainant and since theyfiled a complaint the complainant is trying to bring pressure by 6 of 13 7 Cri.wp 733-2024.odtgiving a concocted story before the learned J.M.F.C. 8.The accused No. 1 has lodged the FIR for the offencespunishable under Sections 306, 304-B r/w Section 34 of the I.P.C.wherein, the complainant, his wife and his two sons are shown asaccused. In that connection, the complainant could not get thebail. That FIR was lodged on 25.03.2018 whereas, the presentapplication is filed in the year 2021. The story even if taken as itis, it clearly shows that the entire story is imaginary and withoutany substance. Son of the complainant and complainant had triedto seek anticipatory bail, however, the same was rejected by thisCourt. Even the Hon’ble Supreme Court rejected the S.L.P. byorder dated 23.07.2018. He further submits that, it is only tocome out of earlier complaint the complainant has filed thepresent complaints. Continuance of proceeding under suchcircumstances would be an abuse of process of law. 9.In Criminal Writ Petition No. 731/2024 the learned advocateMr. Reddy for the petitioners submits that, initially, Police wasdirected to submit the report under Section 200 of the Cr.P.C. ThePolice had conducted investigation. They submitted report of ‘B’ 7 of 13 8 Cri.wp 733-2024.odtsummary dated 05.08.2021 and it is submitted that, no material isfound and no case was made out under Sections 457, 380 of theI.P.C. He submits that, still the learned J.M.F.C. issued process.The order appears to be passed mechanically. There is nothing onrecord to show as to why ‘B’ summary report is not accepted. ThePolice found that, the complaint is lodged only due to enmitybetween the parties. 10.The learned A.P.P. and learned advocate for respondent No. 2vehemently opposed the petitions. They submit that, in thepresent cases, clearly a case is made out for issuance of process.The complaint by accused No. 1 was filed in the year 2018. It isthereafter, in the year 2021 now the complaint is filed. Had itonly been by way of retaliation, it could have been filed long back.It is a matter of fact that, after death of sister, the accused personsstarted harassing the complainant and the employees of theschool. There was demand that they should give the school andthe land of the school to the petitioners. Clearly, averments aremade in the complaint. An order passed by the learned Magistratein both these cases clearly show application of mind. The learnedMagistrate has not issued process mechanically, but has recorded 8 of 13
Legal Reasoning
9 Cri.wp 733-2024.odtthe verification. An order is well reasoned order wherein, thelearned Magistrate has recorded the reasons for issuing processand the material on the basis of which he is satisfied about theexistence of prima facie case. They both, therefore, pray forrejection of writ petitions.11.So far as alternative remedy is concerned, the learnedadvocate for the respondent No. 2 has placed reliance on thejudgment in the case of Ashok Mehta Vs. State of Maharashtra andothers reported in 2005 Cri. L.J. 3321. In the said case, this Courtat Nagpur held that, order of learned Magistrate issuing process isnot an interlocutory order and thus, the writ petition is notmaintainable. 12.The learned advocate for the petitioners relies upon thejudgment in the case of Kirti Kumar Jayantilal Patel and Ors. Vs.State of Maharashtra reported in AIR Online 2023 BOM 355. Inthe said case it is held that, the writ petition can be directlyentertained by this Court wherein, challenge is raised to an orderof issuance of process. In the said case, it is found that the factswere undisputed. It was the case that, a complaint was lodged 9 of 13 10 Cri.wp 733-2024.odtagainst the manufacturer of drug as the product manufacturedwas found to be not of standard quality. In that case, the standarditself was prescribed after the manufacturing of the drug. In thatview of the matter this Court had entertained the writ petition.13.In the present petitions, the facts are disputed. Theevidence is required to be appreciated and for that reason thisCourt holds that it was necessary for the petitioners to approachthe Revisional Court first. So far as submission that, no offence ismade out under Section 390, the Court held that even taking theallegations as it is, no case was made out. On that the S.L.P. wasallowed and the complaint was quashed. Presently, this Courtdoes not find, no ingredients are made out of the offences. 14.Further judgment relies upon by the petitioners is from HighCourt of Karnataka in Criminal Petition No. 8922/2017 in the caseof Sri Nagaraj Rao C.H., S/o C. H. Rao Vs. State by its S.P.P.Bangalore and another. In the said petition it is held that thelearned Magistrate ought to have applied his mind and to havepassed an order by giving proper reasoning. In that case, thePolice had filed a ‘B’ summary report. The complainant had filed a 10 of 13 11 Cri.wp 733-2024.odtprotest petition. There was evidence of the complainant taken. Itis in that view the Court held that reasoning was required to begiven.15.Further case is relied upon by the petitioners is in the case ofIssac Isanga Musumba Vs. State of Maharashtra reported in AIROnline 2013 SC 231. In the said case, it is held that, unless theproperty is delivered to accused person pursuant to threat, nooffence of extortion can be said to have been made out. In thesaid complaint, though there was allegation of threats given forextortion, no amount was delivered by the complainant and inthat view it was held that, offence of extortion was not made outunder Section 383 of the I.P.C.16.Coming to the present petitions, in both the complaints thefacts alleged are not in view of extortion. In Criminal WritPetition No. 733/2024, Cri. M. A. No. 105/2021 is concerned, it isseen that the allegations are not only under Section 383, butunder Sections 307, 511, 506(2) r/w Section 34 of the I.P.C. Fromthe petition paper book it is seen that, verification of thecomplainant is recorded. The order of the learned J.M.F.C. also 11 of 13 12 Cri.wp 733-2024.odtshows that, he has applied his mind and it is only thereafter theprocess is issued. Thus, on merits this Court finds that, no case ismade out calling for interference with the order impugned inCriminal Writ Petition No. 733/2024.17.So far as Criminal Writ Petition No. 731/2024 is concerned,here also this Court finds that the complaint is lodged for theoffences punishable under Sections 457, 380, 506 r/w Section 34of the I.P.C.18.Looking to the order passed by the learned J.M.F.C. thisCourt finds that, the learned J.M.F.C. while passing the orderconsidered the verification statement and the statements of otherwitnesses and has gone through the papers on record. It is onlyon that, an order is passed. Considering overall facts and thematerial, this Court is of the opinion that, there are severalquestions which need to be addressed on factual aspects involvedin the present petitions. The scope of interference under Article227 of the Constitution of India is very limited. The interferenceis permissible only if this Court comes to a conclusion by lookingto the contents of the complaint that no case is made out and the 12 of 13
Decision
13 Cri.wp 733-2024.odtorder passed by the learned Magistrate is without application ofmind. When the complaint makes out a case attracting theingredients of offence and when the learned Magistrate has passedan order on getting himself satisfied on prima facie case, thisCourt would not interfere with the order. Criminal Writ PetitionNo. 731/2024, therefore, also deserves to be dismissed.19.In view of the above, both the criminal writ petitions standdismissed. No order as to costs. ( KISHORE C. SANT, J. ) P.S.B. 13 of 13