Dismissed

Babasaheb Dhondiram Mundhe v. the State of Mah and Anr.

Bombay HC7 Sept 2010WP/394/2010

Case brief

AI extract

What is this about?

In this criminal writ petition under Article 227, the High Court of Bombay Bench at Aurangabad dismissed the petition challenging the issuance of process on the ground of repeated complaints for the same incident. The Court held that while the petitioner raised an abuse of process argument, the proper course is to club the cases and direct the Magistrate to take further action under the CrPC.

What did the court decide?

Petition dismissed; direction to club criminal cases and direct Magistrate to take appropriate action.

Babasaheb Dhondiram Mundhe Vs the State of Mah and Anr. — Bombay HC (2010) — LawSathi Research

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(1) CRI.WP. 394.2010

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.394 OF 2010

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Babasaheb Dhondiram Mundhe
Age : 37 years, Occu.: Agriculture,
R/o Khandali, Tq. Gangakhed,
Dist. Parbhani .. Petitioner

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 VERSUS

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1. The State of Maharashtra
 (Copy to be served in the Office
 of Public Prosecutor, Bombay
 High Court, Bench at Aurangabad)

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2. Vikram Bhograj Malve,
 Age : 50 years, Occu.: Agriculture,
 R/o Khandali, Tq. Gangakhed,
 Dist. Parbhani .. Respondents

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Mr. S.V. Mundhe, Advocate for the Petitioner
Mrs. B.R. Khekale, APP for the respondent-State
Mr. B.R. Kedar, Advocate for the respondent no.2

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...

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CORAM : V.R. KINGAONKAR, J. DATED : 7^TH SEPTEMBER, 2010

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ORAL ORDER:-

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1.This Petition is filed under Article 227 of

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the Constitution of India seeking quashing of

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judgment and order rendered by the learned Additional
Sessions Judge in Criminal Revision Application no. 1
of 2010 confirming the issuance of process order in

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(2) CRI.WP. 394.2010

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RCC no.138 of 2008 rendered by learned Judicial
Magistrate (F.C.), Gangakhed, on 8.12.2009.

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2.The respondent no.2 is original complainant.
He initially filed report with the Police while he
was admitted in the Government Hospital at Gangakhed
alleging that on 19.1.2008 at about mid-day, the
petitioner alongwith others entered his house,
enquired with him as to why he had sought information
about the work done by the Gram Panchayat as per the

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provisions of the Right to Information Act and
thereafter assaulted him. He further alleged that he

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and his wife were injured as a result of the assault.
He alleged further that an amount of Rs.54,000/-
alongwith the gold ornaments were taken away from his
residential house by the petitioner and others. It
appears that the Police investigated into the
complaint and filed chargesheet against the applicant

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and others vide RCC no. 82 of 2008. He again filed
another complaint alleging that process was required

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to be issued for offence under section 395 of the
Indian Penal Code and other sections of the Indian

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(3) CRI.WP. 394.2010

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Penal Code which were omitted while filing of the
chargesheet. The learned Magistrate directed the
same to be produced before the concerned Court
dealing with RCC no. 82 of 2008. The respondent no.2
was not satisfied with such action and again filed
third complaint. He adduced evidence in support of
the third complaint. After enquiry under section 202
of the Code of Criminal Procedure, the learned
Magistrate directed issuance of process for offence
under section 395 of the Indian Penal Code against
the original accused nos. 1 to 5 and under section

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166 of the Indian Penal Code against original accused
no.6. This resulted into commencement of another

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Criminal case vide RCC 138 of 2008.

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3.The petitioner challenged the order of

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issuance of process by filing revisional application
which came to be dismissed.

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4. Learned Advocate Mr. Mundhe argued for the

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petitioner that filing of the same type of complaint
again and again would amount to abuse of the process

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of law. He argued that when the first complaint was

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(4) CRI.WP. 394.2010

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duly investigated and no offence was made out under
section 395 of the Indian Penal Code or under section

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166 of the Indian Penal Code, the filing of the
similar complaint and enquiry there-into was
unwarranted. He contended that such kind of order is
likely to encourage filing of repeated complaints for
the same incident and the matter would become
endless.

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5.The submissions of Mr. Mundhe cannot be the

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legal grounds to interfere in the discretionary
powers of the learned Magistrate and the learned
Sessions Judge in the context of the issuance of
process. It is important to notice that the
respondent no.2 filed earlier complaint for the same
offence alleging that the petitioner alongwith other
accused persons had taken away the cash amount and
gold ornaments from his house after beating him and

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his wife. Part of the story narrated by the
respondent no.1 was found believable by the
Investigation Officer and therefore chargesheet was
filed to the extent of the offences which were made

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(5) CRI.WP. 394.2010

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out. That would not mean total bar created due to
filing of the chargesheet in filing of the same
complaint for enquiry under section 202 of the Code
of Criminal Procedure. There is no prohibition under
the law to dis-allow filing of similar complaint
again and again. If the Magistrate found certain
substance under section 202 of the Code of Criminal
Procedure after due enquiry and decided to take
cognizance of the offences for which chargesheet was
not filed, it cannot be stated that per-se illegal
orders are rendered. The revisional Court also found

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prima facie material and held that the order of the
learned Magistrate is not perverse. The only proper

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course in such a case is to club both the Criminal
cases together and to direct the learned Magistrate
to take further course of action, may be of committal
of the case after enquiry as contemplated under
section 210 of the Code of Criminal Procedure or to
discharge some of the accused if there is no material
found during course of enquiry. The petitioner will
be at liberty to participate in the enquiry which is

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required to be undertaken before the commital.

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CRI.WP. 394.2010

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(6)

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6.In the result, the Writ Petition is

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dismissed with direction that the learned Magistrate
shall take appropriate action for clubbing of both
the matters together and to decide further course of
action in accordance with law.

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 Sd/-
 [V.R. KINGAONKAR, J.]

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arp

Babasaheb Dhondiram Mundhe v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

Babasaheb Dhondiram Mundhe v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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