2014 ALL MR (Cri) 1161
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A.M. THIPSAY, J.

Pradip S/O. Gulabrao Pawar Vs. Krushnrao Jagannath Patil & Anr.

Criminal Writ Petition No. 1000 of 2013

20th January, 2014

Petitioner Counsel: Mr. NITIN B. SURYAWANSHI
Respondent Counsel: Mr. S.V. SURYAWANSHI, Mr. P.P. MORE

Criminal P.C. (1973), S.397 - Revision - Stay of proceedings pending revision - Rejection - Challenge to legality - Petitioner seeking proceedings before trial court be stayed till revision application get decided - Held, it would be proper to stay proceedings because it is not clear how much time it would take for disposal of revision application and if trial itself is over before revision is decided, revision would be rendered as meaningless - Also, once evidence is adduced, proceeding before trial court would be required to be decided by taking it into consideration and question of correctness of issuance of process would no longer survive - Course adopted by Additional Sessions Judge was not proper - Order of rejection set aside. (Paras 5, 6)

JUDGMENT

JUDGMENT :- Heard the learned respective Counsel for the parties.

2. Rule. By consent, Rule made returnable forthwith. By consent, heard finally.

3. The petitioner is the accused in Regular Criminal Case No. 168/2010, filed by the respondent no.1 herein i.e. the original complainant. The learned Magistrate, on the complaint of the respondent no.1 herein, issued process requiring the petitioner and other accused to appear and answer to the charge of an offence punishable under Section 420 of the Indian Penal Code. Aggrieved by the order issuing process, the petitioner filed an application for revision before the Court of Sessions. It is not in dispute that, the revision application is pending in the Sessions Court at Jalgaon. Since the challenge in the revision application is to the order issuing process, the petitioner applied for stay of the proceedings before the Magistrte, pending the hearing and final disposal of the revision application. This application was rejected by the learned Additional Sessions Judge-1, Jalgaon, by his order dated 11-10-2013.

Being aggrieved thereby, the petitioner has approached this Court, seeking a limited relief of requiring the proceedings before the trial court to be stayed, till the revision application is heard and decided on merits.

4. I have gone through the order passed by the learned Additional Sessions Judge. In my opinion, refusal to stay the proceedings before the Magistrate, pending final disposal of the revision application, is not proper or legal. The learned Additional Sessions Judge observed that, prima facie it appeared to him that, the learned Magistrate had applied his mind and then passed the order of issuing process against the petitioner. Thereafter, he observed as follows :

"Whether the impugned order is proper or illegal or not, will have to be considered on merits at the time of final hearing of the case."

With this reasoning, he refused to stay the further proceedings before the Magistrate.

5. If the question of correctness, legality and propriety of the order issuing process is to be decided, it would be proper to stay the further proceedings before the Magistrate. There are at least two reasons for doing so. First would be that, how much time it would take for the disposal of the revision application, would not be clear and, therefore, if the trial itself is over before the revision is decided, the revision would be rendered meaningless. In effect, it would amount to dismissing the revision application without considering the merits thereof. The second reason would be that, once evidence is adduced, the proceedings before the trial court would be required to be decided by taking that evidence into consideration and the question of correctness of issuance of process would no longer survive.

6. The course adopted by the learned Additional Sessions Judge was, therefore, not proper. Since he has not disposed of or dismissed the revision application, and is determined to hear it, it was necessary for him to have stayed the further proceedings before the trial court.

7. This is a fit case where the constitutional jurisdiction of this Court is required to be exercised to correct the patent error committed by the learned Additional Sessions Judge.

8. In the result, the order dated 11-10-2013, passed by the learned Additional Sessions Judge-1, Jalgaon, is set aside.

The learned Additional Sessions Judge shall direct further proceedings before the Magistrate to be stayed, pending the hearing and final disposal of the revision application before him.

The learned Additional Sessions Judge shall, however, expedite the hearing of the revision application and shall decide the same within a period of two months from the date of receipt of this order by him.

9. The petition is allowed to the aforesaid extent. Rule made absolute accordingly.

Petition allowed.