2013 ALL MR (Cri) 2927
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A.P. BHANGALE, J.

The Indian Seeds & Agri-Horticultural Farm Vs. The State Of Maharashtra & Anr.

Criminal Writ Petition No.471 of 2003

12th June, 2013

Petitioner Counsel: SHRI K. C. SANT
Respondent Counsel: SHRI S. K. TAMBE, SHRI A. G. TALHAR

Criminal P.C. (1973), Ss.201, 482 - Penal Code (1860), S.500 - Quashing of process - Process issued for offence of defamation - Once process is issued, remedy which is available to accused is that he may apply for his discharge from case or to drop proceeding against him if, according to him, process was issued without any legal basis - Application for quashing of process not maintainable - Process cannot be quashed. (Para 4)

JUDGMENT

JUDGMENT :- Heard learned counsel for respective parties.

2. By this petition, the petitioner-original complainant questioned the judgment and order dated 25.8.2003 passed by learned 1st Ad-hoc Additional Sessions Judge, Jalgaon in Criminal Revision Application No.289/2002, whereby the learned 1st Ad-hoc Additional Sessions Judge, Jalgaon was pleased to quash the process issued under section 500 of Indian Penal Code, against the respondent accused.

3. It appears that complainant had prosecuted the accused on the ground that he had defamed the complainant's reputation in the market as well as in the mind of people in the society resulting in mental agony for the petitioner. Complaint was lodged being a Criminal Case No.127/1998 under section 420 and 500 of Indian Penal Code. Learned Trial Magistrate Jalgaon was pleased to issue process only under section 500 of Indian Penal Code on the ground that he was prima facie satisfied on the basis of verification and inquiry with one Ravindra Patil. Thus, process was issued limited to accusations punishable under section 500 of Indian Penal Code. The issuance of process was challenged by the accused before the learned 1st Ad-hoc Additional Sessions Judge, Jalgaon in Criminal Revision Application No.289/2002, in which the impugned order quashing the process was passed.

4. While hearing the submissions at the bar, it cannot be disputed that at the inquiry stage under section 202 of Criminal Procedure Code, the question to be considered by the Trial Magistrate is 'as to whether the accused shall be called upon to face an accusations'? Therefore, the accused has no right to take part in the inquiry nor the Magistrate has jurisdiction to permit the accused to participate in such inquiry. In other words, at the preliminary stage, before issuance of process, the accused has no locus standi to be heard, on the question as to whether process should be issued against him or not ? But Once the process is issued, the remedy which is available to the accused is to appear before the Trial Magistrate and he may apply for his discharge from the case or to drop the proceeding against him if, according to him, the process was issued without any legal basis ; wrongly without any substance in accusation. Bearing in mind this legal position I think it was not open for the learned 1st Ad-hoc Additional Sessions Judge, Jalgaon to interfere with the issuance of process at the instance of the accused and that too while exercising revisional jurisdiction. Further it is to be noted that learned 1st Ad-hoc Additional Sessions Judge, Jalgaon in the impugned order referred to some papers placed on record, which appear contra-distinguished than the Record and Proceedings of the trial court. Therefore, order for quashing of the process passed by the learned Trial Magistrate without perusal of the Record and Proceedings or without calling for Record and Proceedings from the Trial Court below appears improper and unjust. On these grounds, the impugned order passed by the learned 1st Ad-hoc Additional Sessions Judge, Jalgaon is unsustainable according to law. Therefore, impugned order must be set aside. Order which was passed by the learned Trial Magistrate for issuance of process is restored. Needless to state that accused has remedy open to him to apply for discharge from the case on merits. Petition is, therefore, disposed of accordingly. Rule is made absolute accordingly.

Ordered accordingly.