High Court · 2025
Legal Reasoning
*12* wp1120o24the Indian Penal Code. Learned JMFC, Ahmednagar was pleasedto observe that since prima facie material on record suggestsufficient grounds to proceed against the accused, therefore, theprocess came to be issued against them. Learned JMFC in its saidorder has recorded that he has perused the B-summary report andalso gone through the investigation papers. The statements of 53witnesses have been recorded. It is observed by learned JMFCthat in B Summary report, it is stated that the complainant waspresent in the meeting of company from 15th April to 21st April,2011 and as such, he was never abducted. However, the saidreport does not reveal the whereabouts of the complainant from21st April to 25th May, 2011. Though the complainant did not callfor help during alleged abduction and there are no neighbours towitness the incident, are not satisfactory grounds to deny theallegations of the complainant. It was also observed by learnedJMFC that there was allegation that the complainant hadmisappropriated funds of Rs.4,80,000/-. According to thepetitioner, in order to avoid legal consequences, he has filed falsecomplaint against the company. However, it is admitted positionthat the company neither reported any misappropriation norundertaken any legal process against the complainant. The report *13* wp1120o24also discloses that cheque of Rs.4,80,000/- procured from thecomplainant was dishonoured. However, the company did notfile any complaint for said cheque issue. No record ofmisappropriation is produced by the company as regards allegedmisappropriation. Thus, learned JMFC disbelieved the theory offalse allegation.11.On the contrary, the complainant is firm on the pointof his abduction and confinement. There is also investigation tothe effect that the company owns Sumo car since 2004. The spotpanchnama conducted on 25.05.2018 reveals that there is smallroom in the company premises at Jalgaon. The said spot is shownby the complainant himself to the investigating officer. Thus,there is corroboration as regards the allegation of complainant areconcerned.However, though learned JMFC was pleased toconsider that there is sufficient material for believing thecomplainant’s version to proceed against the accused, inparagraph No.12 of the order dtd. 24.10.2019 it is observed thatanother RCC no.115/2013 filed by the complainant, wherein,verification of the complainant was recorded and statements ofsix witnesses were recorded. Relying on the said evidence, *14* wp1120o24cognizance was taken in that matter and the process was issuedagainst the accused. Here, the submission of learned seniorcounsel for the petitioner that learned JMFC was pleased toconsider the extraneous material while issuing process in thismatter, is incorrect submission for the reason that learned JMFChas only referred to said actual aspect of record and not evenconsidered what the said six witnesses have stated in thosestatements. So it is clear that learned JMFC while passing orderdtd 24.10.2019 thereby issuing process against the accused, hasnot considered any extraneous material as tried to be canvassedby the petitioner. After going through the complete order passedon 24.10.2019 by learned JMFC, it is absolutely clear thatlearned JMFC not only applied his mind after scrutinizing thecomplete material, but he has also considered the investigationreports in proper perspective. It is thus, clear that learned JMFChas not passed the order dtd. 24.10.2019 in mechanical manner. Itis also clear that learned Magistrate is empowered to takecognizance of the case even if the police report is adverse.12.I have also minutely considered the Judgmentdelivered by learned Sessions Court on 02.04.2024 in Criminal *15* wp1120o24Revision No. 185/2019. The said order also shows detailconsideration not only in respect of the impugned order dtd.24.10.2019 passed by learned JMFC, but also the completematerial available against as well as in favour of the petitioner.Though the learned Sessions Judge in some paragraphscommented on the recourse taken by the petitioner in challengingthe orders of court and also upon higher status of the petitioner,however, same can not be considered to throw away the case ofthe complainant which is rightly ordered to be processed againstaccused persons after giving detail reasons. The impugned orderpassed by learned Sessions Judge is elaborative and with detailreasoning. Learned Sessions Judge is also pleased to consider thegrounds raised by the petitioner while challenging the order dtd.24.10.2019 passed by learned JMFC, therefore, as such no faultor mistake is found in his order.13.Now I deal with the judgments cited by learnedSenior Counsel for the petitioner. In Pepsi Foods Ltd. (supra), theHonourable Supreme Court has observed in paragraph No.28 asunder:-“28.Summoning of an accused in a criminal case is a *16* wp1120o24serious matter. Criminal law cannot be set intomotion as a matter of course. It is not that thecomplainant has to bring only two witnesses tosupport his allegations in the complaint to have thecriminal law set into motion. The order of theMagistrate summoning the accused must reflect thathe has applied his mind to the facts of the case andthe law applicable thereto. He has to examine thenature of allegations made in the complaint and theevidence both oral and documentary in supportthereof and would that be sufficient for thecomplainant to succeed in bringing charge home tothe accused. It is not that the Magistrate is a silentspectator at the time of recording of preliminaryevidence before summoning of the accused. TheMagistrate has to carefully scrutinise the evidencebrought on record and may even himself putquestions to the complainant and his witnesses toelicit answers to find out the truthfulness of theallegations or otherwise and then examine if anyoffence is prima facie committed by all or any of theaccused.”14.As it is already seen in this case that learnedMagistrate has applied his mind while passing the order and hehas scrutinized the evidence brought on record in proper manner.It is clear that the criminal law has not been set into motion as amatter of routine course. Therefore, the above citation in PepsiFoods Ltd. (supra) is not useful to the petitioner in any way.Again in paragraph 22 of the very same judgment, it is held bythe Hon’ble Apex Court that the power conferred under Articles *17* wp1120o24226 and 227 of the Constitution of India and under section 482 ofCrPC have no limits, but more the power more due care andcaution is to be exercised while invoking these powers.15.In Mehboob Rehman vs Khazir Mohammad Tunda(supra), in para 20 of the said judgment a reference has beenmade to the judgment delivered in Pepsi Food (supra) wherein,aspect of application of mind by the Magistrate while issuingprocess is stated. As discussed earlier that learned Magistrate hasconsidered all the material before him and his order of issuingprocess discloses proper application of mind by him, therefore,this verdict has been duly followed by the learned Magistrate.16. Both judgments in M/s India Carats (supra) andMinu Kumari (supra), state that learned Magistrate can takecognizance of the offence even if police report is to the effect thatno case was made out. In the case in hand, in the order passed bylearned Magistrate, there is sufficient discussion as regardsmaterial brought by the police in their report. After consideringthe material, learned Magistrate was pleased to issue the processagainst the accused persons. Therefore, the said order passed bylearned Magistrate is not contrary to these pronouncements of the *18* wp1120o24Hon’ble Apex Court.17.The verdict in Krishana Lal Chawla (supra), pointsout duty of learned Magistrate in preventing abuse of courtprocess as regards frivolous and vexatious complaints. However,here in this case, from the various incriminating material likespot panchnama, application by wife of the complainant to thecourt, availability of Sumo car and various other factors, it doesnot go to show that the complaint filed by the respondent/complainant is false and frivolous. Hence, the above judgmentwill not be applicable to the instant case.18.In view of above discussion, it is clear that learnedJudicial Magistrate First Class, while passing the impugned orderdtd. 24.10.2019, has considered the detail aspects involved in thematter and applied his mind. He has also sufficiently givenreasons to arrive at his conclusion to issue process against theaccused persons. The said order is also rightly maintained by thelearned Sessions Judge in Revision by again passing the detailedorder. The concurrent and well reasoned orders against thepetitioner do not go to show that same are in excess or amountsto abuse of process of court or without the jurisdiction. There is *19* wp1120o24also nothing to suggest that both the courts have not acted inaccordance with law. Writ jurisdiction is limited to examininglegality, propriety, and correctness of the orders. This Court,while exercising jurisdiction under Article 227 of theConstitution and Section 482 of the Cr.P.C., is not expected to re-appreciate evidence, but to ascertain whether the impugnedorders suffer from perversity or patent illegality.19.Hence, the Writ Petition being devoid of merit isdismissed. Interim order dated 11.07.2024 passed by this Courtstands vacated. The learned JMFC, Ahmednagar, is directed toproceed with RCC No.456/2011 in accordance with law.20.Rule is, accordingly, discharged.21.At this stage, learned advocate Ms.Kulkarni requestsfor continuation of interim relief granted earlier so as to enablethe petitioner to approach the Honourable Supreme Court.However, learned APP as well as learned advocate for respondentNo.2 strongly opposed the said request on the ground that RCCNo.456/2011 is pending since 2011 and the petitioner is adoptingdelaying tactics.
Arguments
*1* wp1120o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1120 OF 2024Mr. Ajit s/o Bhavarlal Jain,Aged : 52 years, Occ : BusinessVice Chairman, Jain Irrigation Systems Ltd. (JISL),C/o Jain Plastic Park, NH-6,Jalgaon-72....PETITIONER(Accused No.1)-VERSUS-1.The State of Maharashtra.Through Senior P.I.,Kotwali Police Station, Ahmednagar, Taluka and District Ahmednagar.2.Dadasaheb Shankar Suryawanshi,Age : 62 years, Occ : Nil,R/o Ajinkya Housing Society,Bhushan Nagar, Kedgaon,Taluka and District Ahmednagar....Orig. Complainant...RESPONDENTS…Shri Ashok Mundargi, Senior Advocate i/by Mrs.RashmiKulkarni and Shri Jayant Bardeskar, Advocates for the petitioner.Shri Sunil B. Jadhav, APP for respondent No.1/ State.Shri Dattatraya R. Markad, Advocate for respondent No.2.… CORAM : SUSHIL M. GHODESWAR, J.DATE : 17 OCTOBER 2025 *2* wp1120o24ORAL JUDGMENT :-1.This petition under Article 227 of the Constitution ofIndia and Section 482 of the Code of Criminal Procedure is filedby the original accused, challenging the concurrent orders passedby learned Judicial Magistrate First Class, Ahmednagar andlearned Sessions Judge, Ahmednagar.2.Rule. Rule made returnable forthwith and heardfinally by the consent of parties.3.The main reliefs sought by the petitioner, throughprayer clauses C and D, are as under:-“C.That this Hon'ble Court may be pleased toallow the present Writ Petition and quash andset aside the Order dated 02.04.2024 passed bythe Learned Additional Sessions Judge,Ahmednagar passed in Criminal RevisionApplication No. 185 of 2019 and further bepleased to quash and set aside the Order ofissue process dated 24.10.2019 in R.C.C. No.85 of 2012(B Summary Proceedings) passed bythe learned Judicial Magistrate First ClassAhmednagar for offence punishable underSection 363, 365, 368 r/w. 34 of I.P.C. in theinterest of justice which is now numbered asR.C.C No. 456 of 2011 pending on the file ofthe learned Judicial Magistrate First Class,Ahmednagar.D. That this Hon'ble Court may be pleased toallow the present Writ Petition and quash and *3* wp1120o24set aside the proceedings bearing R.C.C No.456 of 2011 pending on the file of the learnedJudicial Magistrate First Class, Ahmednagar.”4.RCC No.456/2011 is the complaint filed byrespondent no.2 before the learned Chief Judicial Magistrate,Ahmednagar, for the offences punishable under Sections 363,365, 368 r/w 34 of the Indian Penal Code. Respondent no.2/complainant stated that the accused persons have abducted himfrom 14.04.2011 to 25.05.2011 without his consent and theydetained him in company office. During this period on20.05.2011 they compelled him to write an affidavit andresignation and also obtained the cheque of Rs. 4,40,000/- dated28.11.2011 from him. On 26.05.2011, he approached to police,however, since they didn’t take any action, therefore, he filedcomplaint on 11.07.2011 before the learned Chief JudicialMagistrate, Ahmednagar which is registered as RCC No.456 of2011. On 02.08.2011, the learned JMFC, Ahmednagar directedthe police to register the case and investigate the matter. Afterinvestigation, the police submitted ‘B’ Summary report bearingRCC No. 85 of 2012 on 26.02.2013. Therefore, the notice wasissued to the complainant wherein, he appeared and filed his say *4* wp1120o24cum objection on 04.05.2013. Thereafter, the Learned JMFC,Ahmednagar was pleased to accept the ‘B’ Summary report anddisposed of RCC No. 456/2011 vide order dtd. 16.04.2016. Infact, on 16.04.2016 learned JMFC passed another order belowExhibit 1 thereby, not permitting the counsel for accused toappear as the accused was not yet summoned and the matter wasat a pre-cognizance stage. However, it was noted that thecomplainant has filed another RCC No.115/2013 which wasbased on same contents and prayer, when ‘B’ summary was filed.The said RCC No. 115/2013 is already stayed by this Court inWrit Petition no. 1335/2014. However, later on the Complainantwithdrew RCC No.115/2013 by filing pursis below exhibit 30before learned JMFC, Ahmednagar.5.Being aggrieved by the order dtd. 16.04.2016 ofdisposing of RCC No. 456/2011, Respondent No.2 filed CriminalRevision Petition No.79/2016 before Additional Session Judge,Ahmednagar. Vide order dated 19.04.2018, said revision petitionwas allowed thereby, rejecting the “B’ summary report no. 85 of2012. The Police Inspector was directed to re-investigate theoffence registered vide CR No. 41 of 2011 of Kotwali Police *5* wp1120o24Station. Thereafter, on 02.08.2018 after detailed investigation,the police have again filed again ‘B’ Summary report beforelearned JMFC, Ahmednagar. Respondent no.2 / complainant filedhis say cum objection on 05.09.2018. Learned JMFC,Ahmednagar was pleased to take cognizance vide order dtd.24.10.2019 of regular Criminal Case thereby, rejecting the ‘B’summary report no. 85/2012 and issued process against accusednos.1 and 2 for the offences punishable under section 363, 365,368 read with 34 of IPC. The said order is challenged in CriminalRevision No.185/2019 by the Petitioner and other accused beforelearned Sessions Court, Ahmednagar. The said Criminal revisionno.185/2019 came to be allowed by learned Sessions Judge videhis order dated 08.09.2021. According to learned Sessions Judge,it was not appropriate for the JMFC Ahmednagar to pass theimpugned order dtd. 24.10.2019 of issuing process in RCC no.456 of 2011 when the stay is granted by this court in WritPetition No.1335/2014 wherein, issuance of process order inRCC no.115/2013 between the same parties is underconsideration. Thereafter, Respondent no.2 preferred CriminalWrit Petition no.1166 of 2021 challenging the order dtd.08.09.2021 passed by the Sessions Judge in Criminal Revision *6* wp1120o24No. 185/2019. This Court vide order dtd. 30.06.2023 in CriminalWrit Petition no.1166 of 2021 set aside the order dated08.09.2021 passed by learned Sessions Court, Ahmednagar andrelegated Criminal Revision No.185/2019 to the Sessions Judgefor its decision afresh in accordance with law. Again detailedhearing took place before another learned Sessions Judge andafter hearing the parties, the revision preferred by the Petitionercame to be dismissed vide impugned order dated 02.04.2024.Against this order dated 02.04.2024, the petitioner hasapproached this court in this petition.6.Mr. Mundargi, learned Senior Counsel for thepetitioner, submitted that learned JMFC as well as learnedSessions Judge have relied upon the material i.e. the statement ofcomplainant recorded in another complaint i.e. RCC No.115 of2013 and the said RCC No.115/2013 has been withdrawn by thecomplainant unconditionally. Thus, the said material wasextraneous and ought not to have been relied upon by the courtsbelow. He further submitted that learned Magistrate was requiredto consider the whole report u/s 173 of Cr. P.C. and was requiredto apply his mind while taking cognizance. Both the courts have *7* wp1120o24failed to appreciate that a completely frivolous litigation has beenfiled against the petitioner, which is liable to be quashed and setaside. He further submitted that during investigation more than20 witnesses from his company have stated that there is no “tinshed in the plastic park” where the complainant was alleged tohave been confined. Even the statements of neighbours of thecomplainant disclose that nobody has seen him that he wasforcibly taken in a jeep. The complainant later on improvised hisstatement that he was not kept at tin shed, but in a locker room.The other workers used to keep their tiffins in the said room andnobody has seen the complainant there. Even in furtherinvestigation, the statements of bond writer, notary etc. have beenrecorded and they have not supported the complainant. LearnedMagistrate also did not give any reason while rejecting the Bsummary report submitted by Investigation Officer. LearnedSessions Judge, while passing the impugned order, has alsowrongly observed that the petitioner being rich and powerful, canmanipulate and instead of facing trial, he is running away fromtrial and challenging the orders. The said observation isextraneous and in the nature of surmises and conjectures. Thus,learned Senior Advocate has prayed for quashing of the *8* wp1120o24impugned orders.7.In support of his submissions, learned SeniorAdvocate Shri Mundargi has relied on following judgments:-(a)Pepsi Foods Ltd and another vs. Special JudicialMagistrate and others, (1998) 5 SCC 749.(b)Mehmood Ul Rehman vs. Khazir Mohammad Tundaand others, (2015) 12 SCC 420.(c)M/s India Carat Pvt. Ltd. vs. State of Karnataka andanother, AIR 1989 SC 885.(d)Minu Kumari and another vs. State of Bihar andothers, (2006) 4 SCC 359.(e)Krishna Lal Chawla and others vs. State of UttarPradesh and another, (2021) 5 SCC 435.8.Mr. Markand, learned counsel for Respondent No. 2/complainant, submitted his written notes of argument and madelegal submissions that the Investigating Officer has recorded thestatement of 53 witnesses. The investigation report does notreveal whereabout of the complainant from 22.04.2011 to25.05.2011. Mr. Markand submitted that the complainant hasfirmly narrated the abduction and confinement, therefore, merelybecause the complainant did not call for help and there are noneighbours to witness the incident, are not satisfactory grounds to *9* wp1120o24disbelieve him. His another submission is that though the chequeof Rs. 4,80,000/- was dishonoured, still the company did not filethe complaint against him. The finding of the InvestigatingOfficer that the complaint is filed to avoid consequences ofmisappropriation, is not satisfactory and not supported by anydocument. The car, which is used during abduction, is alsoowned by the company. He also stated that the spot of abductionis shown by the complainant to the investigating officer on25.05.2018, which supports him to corroborate his case. Thus, hestrongly supported the impugned orders. Mr. Markand also tookme through the contents of reply filed by the complainant. Healso submitted that there is concurrent finding against thepetitioner and as such, now at this stage same may not bedisturbed.9.Before adverting to legal issues, first the facts whichare undisputed can be summarized as under:-DateParticulars of events19.05.2011Complainant’s wife filed criminal proceedings undersection 97 of CrPC vide Misc. Cri. Application no. 433of 2011 before JMFC Ahmednagar wherein learnedJMFC was pleased to issue show cause notice to theCompany. *10* wp1120o2420.05.2011The Complainant’s wife had been to company’s officeto serve the above notice.11.07.2011The Complainant filed RCC no. 456 of 2011 beforeJMFC Ahmednagar against the petitioner and otheraccused for the offences punishable u/s 365, 368 r/w 34of IPC.02.08.2011Learned JMFC was pleased pass order under section156(3) of CrPC directing Kotwali Police Station toregister and investigate the crime.04.08.2011Crime No. MECR No. 41 of 2011 is registered for theoffences punishable under section 363, 365, and 368r/w 34 of IPC against the petitioner and Accused no. 2.31.01.2013In the meantime, the Complainant again filed anotherRCC no. 115/2013 on same facts against the petitionerand other accused before JMFC Ahmednagar.26.02.2013In RCC 456 of 2011, after completion of investigation,B summary report was submitted before the JMFC andlearned Magistrate issued notice to the Complainant.09.12.2013In RCC No. 115/2013, JMFC was pleased to issueprocess against Petitioner.14.10.2014Learned Sessions Judge rejected Revision no. 4/2014challenging issuance of process order dated09.12.2013.16.04.2016 In RCC No.456 of 2011, JMFC was pleased to acceptthe B Summary Report.19.04.2018The above order dtd. 16.04.2016 of Ld. JMFC came toquashed and set aside by learned Sessions Judge in Cri.Rev. Application 79/2016 and further directed theinvestigating officer to re-investigate the case and tofile report. 02.08.2018Accordingly, the Investigating officer Kotwali PSconducted investigation and filed B summary Report. *11* wp1120o2424.10.2019The Magistrate issued notice to the Complainant. Thecomplainant filed Protest petition and thereafter, theMagistrate rejected B Summary Report dtd.02.08.2018.08.09.2021The Petitioner, therefore, challenged order dtd.24.10.2019 before the Sessions Court in Cri. Rev.Appln No. 185 of 2019, which came to be allowed andthe matter was remanded back to JMFC Ahmednagar.30.06.2023The Complainant preferred Cri. WP 1166 of 2021before High Court wherein this court quashed and setaside the order dtd. 08.09.2021 and reminded matter toSessions Court Ahmednagar to take a fresh decision.02.04.2024The Sessions Court dismissed Cri. Rev. 185/2019,therefore, the petitioner challenged said order in thispetition. 10.In the aforesaid facts and circumstances, now at thisstage, it is to be seen that whether, both the courts below havecommitted any mistake or error while passing the impugnedorders so that instant writ petition can be entertained even underSection 482 of Cr.PC. The first order is passed by learnedJudicial Magistrate First Class Court No. 10, Ahmednagar on24/10/2019. This order runs into 13 paragraphs and after givingdetail reasoning, the B summary report came to be rejected. Thecognizance of the complaint came to be taken and process cameto be issued against accused nos.1 and 2 for the offencespunishable under sections 363, 365, 368 read with section 34 of
Decision
*20* wp1120o2422.In view of the findings recorded hereinabove and thedismissal of the writ petition on merits, this Court does not findany justification to continue the interim protection. Once thepetition itself stands dismissed, the interim relief automaticallystands vacated. Continuation of such relief would amount toindirectly granting what has been refused on merits. Hence, theprayer for continuation of interim relief stands rejected. kps (SUSHIL M. GHODESWAR, J.)