Partly allowed

Bharat J Patel v. the State of Mah and Anr.

Bombay HC25 Sept 2012APPLN/1809/2012

Case brief

AI extract

What is this about?

The High Court held the Criminal Application maintainable because the Magistrate ignored the 2005 amendment to Section 202 Cr.P.C. regarding territorial jurisdiction. The court remitted proceedings to hold a proper inquiry.

What did the court decide?

Criminal Application partly allowed; proceedings remitted to Judicial Magistrate for holding an inquiry under amended Section 202 Cr.P.C.

Bharat J Patel Vs the State of Mah and Anr. — Civil Procedure and Limitation | Bombay HC (2012)

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Cri.Appln.No.1809/2012

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.1809 OF 2012.

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Mr.Bharat J.Patel,
Age: 58 Yrs., occ. Stock Broker,
R/o 3-3A, Churchgate House,
First Floor, 32/34/
Veer Nariman Road, Fort,
Mumbai. - PETITIONER

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 VERSUS

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1)The State of Maharashtra,
Through Police Inspector,
Waluj, Aurangabad.
2)Garware Polyester Ltd.,
Naigaon, At post Waluj,
Aurangabad, Through its
President – Chandrashekhar
Jaiwantrao Pathak
Age: 58 Yrs., occu.Service,
R/o Plot no.F-127, N-4,CIDCO,
Aurangabad – 431 003.- RESPONDENTS

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*****

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Mr.RF Totla, Adv. h/for Mr. A.A.Pimpalwadkar,Advocate
for Petitioner;

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Mr.V.D.Godbharale,APP for Respondent No.1/State.

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Mr.N.S.Ghanekar, Advocate for Respondent No.2.

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CORAM: NARESH H.PATIL &
A.B.CHAUDHARI,JJ.
DATE : 25th September,

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2012.

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ORAL JUDGMENT:(PER:-A.B.CHAUDHARI,J.)

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.Heard. Rule. Rule made returnable forthwith
by consent of the rival parties.

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2 Cri.Appln.No.1809/2012

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2)There is a preliminary objection raised by
learned Advocate for Respondent No.2 (original
complainant) to the maintainability of the present
criminal application on the ground that an alternate
remedy being available, this Court should not
exercise its jurisdiction under Section 482 Cr.P.C.
He further argued that perusal of the impugned order
issuing process along with a copy of the complaint
and the relevant documents clearly show that, in
substance, the Magistrate has complied with all the
requirements of law and, therefore, no interference
is called for.

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3)The Counsel appearing for the applicant
(original accused), inviting our attention to
amendment to Section 202 of Criminal Procedure Code,
which was brought into effect in the year 2005, and
the judgment of Single Judge of this court (one of us
A.B.Chaudhari,J.) in Satish @ Rajendra Harbans Tiwari

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& Ors. Vs. State of Maharashtra and Anr. - 2010
(2)Bom.C.R.(Cri.) 523argued that the said procedure
having not been followed by the learned Magistrate,
the impugned order of issuing process becomes an
order contrary to law and, therefore, this
application is very well maintainable since the
applicant restricts his challenge only in relation to
the said amended provision.

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CONSIDERATION:

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4)We have considered the rial submissions
advanced by the parties. We find that the grievance

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3 Cri.Appln.No.1809/2012

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is in relation to amendment to Section 202 of
Cr.P.C. that has come into effect in the year 2005
and that amendment was not taken into consideration
or it was ignored by the learned Magistrate and that
being so, this Criminal Application would be
maintainable and we would be justified in
entertaining the Criminal Application .

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5)Perusal of the impugned order issuing
process clearly shows that the learned Magistrate has
not at all considered the amendment to Section 202
Cr.P.C. in relation to the persons residing outside
the territorial jurisdiction of the Magistrate. Not
only that, inquiry contemplated under the amended
provision was required to be conducted by the
Magistrate after putting the complainant on notice
to that effect. That does not appear to have been
done.

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6)The learned Counsel for the applicant has
relied on the decision of this Court in the matter of
Satish @ Rajendra Harbans Tiwari & Ors. Vs. State of
Maharashtra and Anr.(cited supra), wherein this Court
has held that the Magistrate was bound to conduct an
inquiry. In the light of the discussion made in the
aforesaid judgment, particularly para 9 thereof, we
are inclined to hold that the Magistrate ought to
have considered the said amendment and then proceeded
to act accordingly. That having not been done so, we
are inclined to make the following order :

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O R D E R

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(i)The Criminal Application is partly allowed;

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4 Cri.Appln.No.1809/2012

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(ii)Rule is made absolute in terms of prayer
clause (B) of the petition;

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(iii)The proceedings in Complaint S.C.C.No.
58/2012 pending before the court of Judicial
Magistrate, First Class, Gangapur, are remitted to
the learned Magistrate for holding an inquiry in the
light of observations made in this judgment and then
to proceed further in accordance with law. No order
as to costs.

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sd/- sd/-
(A.B.CHAUDHARI)(NARESH H.PATIL)
 JUDGE JUDGE

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bdv/

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Authenticated Copy

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(BD VADNERE,PS)

Bharat J Patel v. the State of Mah and Anr.

Case brief

What is this about?

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Bharat J Patel v. the State of Mah and Anr.

Case brief

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