Ritu Sharad Nemani Vs Vishwanath B.Goenka and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPLICATION NO.2051 OF 2001

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 Ritu Sharad Nemani Applicant
 versus
 Vishwanath B. Goenka and anr. Respondents

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 Shri S.V.Marwadi for applicant.

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 Shri Vikas Vishwanath Goenka, Power of Attorney
 holder of respondent no.1 present in person.

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 CORAM : S.C.DHARMADHIKARI, J.

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 DATE : 22nd August 2006

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 PC :

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 1. The grievance in this application under
 section 482 of Code of Criminal Procedure is that
 the first respondent-wife had filed a complaint
 against the petitioner, her brother and father in
 the Court of learned Magistrate, First Class, at
 Bhivandi. The complaint alleges commission of an
 offence punishable u/ss.406 and 420 of IPC.. The
 Magistrate was pleased to forward the complaint
 to Inspector of Police, Nizampur Police Station

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 u/s 156(3) of Cr.P.C.. The offence thereafter

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 came to be registered and a charge sheet was
 filed in the Court. The case was thereafter

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 numbered as Criminal Case No.355 of 1998.

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 2. The applicant was advised to invoke the
 learned Magistrate’s jurisdiction u/s 239 of
 Cr.P.C. and an application was filed for
 discharging her as also two others in the above
 case on 26th October 1998.

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 3. It is not disputed before me that the
 application was initially dismissed on 18th
 October 2000 inasmuch as the learned Magistrate
 proceeded to frame charges. The grievance is
 that the charges came to be framed without any
 orders being passed on the application for
 discharge. The matter was carried in revision to
 the Second Additional Sessions Judge, Thane, who
 by his order dated 4th July 2000 in Criminal
 Revision Application No.5 of 2000 directed as

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 under:-

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 "ORDER :

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 1. The Revision petition is allowed and
 the order of the learned Magistrate
 framing charges against the accused
 persons is set aside and the learned
 Magistrate is directed to decide the
 application for discharge Exh.4 first
 after hearing both the parties and then
 proceed with further trial in the case in
 the light of such findings or decision on
 application Exh.4.

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 2. R & P of the concerned Criminal case
 be sent to the Court of concerned
 Magistrate immediately.

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 3. The parties to appear before the
 learned Magistrate on 24th July 2000."

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 Upon the matter being remitted back, it was
 expected of the learned Magistrate to decide the
 application for discharge (Exh.4) before he
 proceeded to frame charges as directed under the
 order of Revisional Court reproduced above. Shri
 Marwadi makes a serious grievance that this order
 has not been challenged and had gained finality.
 In such circumstances, learned Magistrate was
 bound by the direction of Sessions Judge, and,
 therefore should have decided the discharge
 application.

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 4. However, the learned Magistrate instead of
 deciding the matter took cognizance of an
 application of the original complainant and
 issued a non bailable warrant against petitioner/
 applicant for her alleged absence on the date
 fixed by the Trial Court. That application was
 allowed and non bailable warrant was issued on
 18th October 2000. Thereafter, the matter was
 carried to the Revisional Court and the
 Revisional Court by its order dated 6th November

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 2000 framed a point of maintainability of the
 revision application and ultimately held that the
 revision application is not maintainable and
 dismissed the same on 11th May 2001.

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 5. According to Shri Marwadi, these orders are
 subject matter of challenge in this application.
 He submits that the applicant before this Court
 was duly represented by an Advocate engaged by
 her. The advocate had attended all dates of
 hearing. When the discharge application was to
 be heard before any other proceeding including
 framing charges, then it was not necessary for
 the applicant, who is a married lady, to remain
 present in person. The directions are
 misconceived and the approach is ex-facie
 erroneous in law. The Trial Court was bound by
 the direction of the Revisional Court and should
 have passed appropriate orders on the discharge
 application after hearing the applicant’s
 advocate. In such circumstances, serious loss
 and prejudice is caused to the applicant and this
 Court must exercise its inherent powers and quash
 & set aside the order issuing non bailable
 warrant which in any event has been stayed for
 all these years. He submits that the applicant
 would remain present on the date fixed by this

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 Court and argue the discharge application on that
 date itself.

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 6. The complainant who is respondent no.2 before
 me, is represented by his Power of Attorney
 holder son. His submission is that this Court
 should not exercise its inherent powers and
 assist a litigant who has, all through out,
 delayed the proceedings before the Trial Court.
 He submits that filing of a discharge application
 is merely a ploy to delay the matter. The
 complaint is pending for all these years. In
 such circumstances, this Court should not
 interfere in the matter. However, he was
 agreeable to a direction being issued to the
 Trial Court for deciding the discharge
 application but this Court should also directs
 expeditious disposal of the criminal case itself.

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 7. After hearing both sides and perusing the
 application and the annexures thereto I am of the
 view that the learned Magistrate was in obvious
 error in not abiding by the directions issued by
 the Revisional Court which were final and
 remained unchallenged. Once the direction was to
 decide the discharge application in accordance
 with law and the applicant’s advocate was present

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 to argue the same, the learned Magistrate ought
 not to have insisted on the personal presence of
 the applicant. More so, when she is a married
 lady and is settled abroad after her marriage.
 It is not as if the applicant is not obliged to
 attend the case at all. Once appropriate orders
 are passed on the discharge application and the
 learned Judge proceeds with the case thereafter,
 then it is always open for him to secure presence
 of the accused. However, once in the facts and
 circumstances of this case, a clear direction was
 issued to proceed with the discharge application
 first, then the learned Magistrate should not
 have proceeded to issue a non bailable warrant.
 By this process, the litigants are put to
 unnecessary inconvenience and criminal cases are
 delayed endlessly. Ultimately, all such
 directions are issued to subserve the ends of
 justice and the learned Magistrate was bound by
 the directions of the Revisional Court.

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 8. Therefore, without entering into the larger
 controversy about maintainability of the revision
 application, in the facts and circumstances of
 this case, interest of justice would be subserved
 if the order dated 18th October 2000 which has
 been stayed all through out, is quashed and set

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 aside. The discharge application is restored to
 file. The applicant’s advocate to remain present
 and argue the discharge application before the
 Trial Court on Monday, 11th September 2006. The
 Trial Court to hear the submissions of the
 advocate for the applicant so also the
 complainant and pass appropriate orders in
 accordance with law. In any event, the discharge
 application must be decided within a period of
 two weeks from 11th September 2006. All
 contentions of both sides are expressly kept
 open. No opinion is expressed by this Court
 thereon.

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 9. Needless to state that if the discharge
 application is dismissed and the learned
 Magistrate proceeds to frame charges, he shall
 endeavour to dispose of the criminal case within
 a period of six months from the date of framing
 of charges.

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 (S.C.DHARMADHIKARI, J.)

Ritu Sharad Nemani v. Vishwanath B.Goenka and Anr.

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Ritu Sharad Nemani v. Vishwanath B.Goenka and Anr.

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