Dismissed

Viral Malaybhai Dalal v. Jhaveri Flexo (India) Ltd.

Bombay HC17 Oct 2013APPLN/1025/2013

Case brief

AI extract

What is this about?

In an application invoking inherent powers challenging the issuance of criminal process, the Court declined to exercise discretion in view of the existence of a statutory remedy, noting the applicant's delay but granting a one-month stay to file a revision.

What did the court decide?

Application rejected; proceedings before the Magistrate stayed for one month.

Viral Malaybhai Dalal Vs Jhaveri Flexo (India)… — Civil Procedure and Limitation | Bombay HC (2013)

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Cri.Appln1025.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 1025 OF 2013

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Viral Malaybhai Dalal

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..APPLICANT

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-VERSUS-

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Jhaveri Flexo (India) Ltd.,

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..RESPONDENT

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Advocate for Applicant : Mr. Deshmukh H.D. APP for State : Mr. P.N. Muley

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Advocate for Respondent : Mr. N.S. Jaju h/f Mr. L.B. Pallod

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CORAM : ABHAY M. THIPSAY, J. Dated: October 17, 2013

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ORAL ORDER :-

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Heard the learned counsel for the applicant. Heard the learned counsel for the respondent.

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The applicant is an accused in R.C.C. No. 97/2010, which is pending before the Judicial Magistrate, First Class, Paithan. The case is in respect of offences punishable under Section 420 of the Indian Penal Code and Section 630 of the Companies Act. The applicant is aggrieved by the order issuing process against him and is challenging the same on the ground that the applicant being a resident of area outside the territorial jurisdiction of the learned Magistrate, the Magistrate could not have issued process without holding an inquiry under Section 202 of the Code of Criminal Procedure. The applicant claims that the process has been issued by the learned Magistrate without holding any such inquiry.

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I find that the process was issued some time in March, 2010. The applicant appeared before the Magistrate on 31.05.2010. The applicant also

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Cri.Appln1025.13.odt

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executed the bail bonds on 15.07.2010. There is no dispute with respect to these dates and they are taken from the application itself.

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It appears that the applicant, thereafter, remained absent before the Magistrate on a number of occasions. The Magistrate, therefore issued a non-bailable warrants of arrest on a number of occasions, to procure the presence of the applicant. These warrants were got cancelled by the applicant by making appropriate applications before the Magistrate. It also appears that the applicant had applied for exemption from personal appearance during the trial, which application was rejected by the Magistrate.

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A curious feature of the matter is that the learned counsel for the applicant is emphasizing that the respondent is not proceeding with leading evidence before charge . At a number of places, it is averred in the application that the learned Magistrate instead of recording the evidence before charge, issued non-bailable warrants against the applicant , as if the Magistrate has done something wrong. It is clear that the applicant was not present before the Magistrate; and unless the applicant himself had waived his right to get the evidence recorded in his presence, the Magistrate could not have recorded the evidence before charge. Therefore, the contention of the applicant that the Magistrate instead of recording the evidence before the charge, issued warrant against him, is absolutely meritless.

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Be that as it may, the applicant has invoked the inherent powers of this Court without availing of the statutory remedy of filing an application for revision in the Court of Sessions, or if the applicant would so choose, before this Court. When this aspect of the matter is discussed, the learned counsel for the applicant points out that in Criminal Application No. 3310/2011, the applicant had sought a similar relief, and that, this Court

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Cri.Appln1025.13.odt

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had granted relief to him by setting aside the orders issuing process and by directing the Magistrate to cause an inquiry in terms of Section 202 of the Code of Criminal Procedure to be made. I have gone through the said order. In my opinion, simply because in that case, the Criminal Application was entertained by this Court, it is not necessary that even the present application should be entertained, particularly when, the applicant has not been prompt in pursuing the legal remedies available to him.

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This Court has discretion in the matter as to whether an application invoking inherent powers of this Court should be entertained or not, when a party has an effective statutory remedy available to it. In my opinion, considering all the relevant aspects of the matter, this is not a fit case where the discretion of this Court should be exercised in favour of the applicant. The applicant may avail of the statutory remedy of filing an application for revision against the order issuing process. It would be for the applicant to explain the delay that has been caused in taking recourse to a court of law. Undoubtedly, the fact of pendency of the present application since February, 2013 before this Court may be taken into consideration by the Revisional Court.

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The application is rejected with the aforesaid observations.

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However, in order to grant reasonable time to the applicant to avail of the alternative remedy by making an appropriate application before the appropriate Forum, it is directed that further proceedings before the Magistrate shall be stayed for a period of one month from today .

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( ABHAY M. THIPSAY, J. )

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sga/-

Viral Malaybhai Dalal v. Jhaveri Flexo (India) Ltd.

Case brief

What is this about?

What did the court decide?

Viral Malaybhai Dalal v. Jhaveri Flexo (India) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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