2014 ALL MR (Cri) 1708
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.D. KODE, J.
Murli Industries Ltd. & Ors. Vs. Omprakash Maniram Agrawal
Criminal Writ Petition No. 454 of 2013
21st August, 2013
Petitioner Counsel: Mr. R.M. PATWARDHAN
Respondent Counsel: Mr. R.M. SHARMA
Criminal P.C. (1973), Ss.397, 204 - Negotiable Instruments Act (1881), S.138 - Revision - Application for stay of order issuing process - Denial - Sustainability - Held, no process can be issued unless prima facie case of commission of offence is spelt out from complaint or material placed before court - Whereas, order of admitting revision application itself denotes that court has prima facie come to the conclusion of there being need to examine the legality - As such, not granting stay and permitting to continue the prosecution, clearly appears to be wholly improper - Impugned order set aside with direction to Revisional Court to dispose the application at earliest. (Paras 4, 5)
2. Though the petitioners have made several prayers in the petition, at the hearing, they have pressed only for the prayer (ii) in the petition and requested to keep open the contentions on which the remaining prayers are founded as an application in revision seeking the similar prayer is pending before the Court of Session.
3. Thus, the present petition is considered regarding order dated 26.06.2013 passed by Sessions Judge, Chandrapur rejecting an application for grant of Stay of proceeding before the trial Court. The said application in revision was directed against an order dated 25.02.2013 passed by J.M.F.C. (Court No.1) Chandrapur issuing process for an offence under section 138 of the Negotiable Instruments Act against the petitioners in a Sum. Criminal Complaint Case No.234/2013 presented in said Court.
4. A glance at Section 397 of the Cr.P.C. reveals that inherent power is conferred upon the High Court as well as the Court of Session to call for the record of proceedings pending before the trial Court for examining the legality, propriety or correctness of order passed therein. The said power can be exercised either suo motu or upon an application made by the parties. Thus, considering the nature of power conferred, the procedure stipulated for exercising said power and particularly effect of the admission of application in revision i.e. the court having prima facie come to the conclusion of there being need to examine the legality, propriety or correctness of the order questioned and in the instant case, the order in question being relating to the issue of process for commission of an offence and having regard to the settled position that no criminal prosecution should permitted to be initiated upon complaint unless and until a prima facie case of commission of the offence alleged is spell out from the complaint preferred and/or the material placed before the court in support of such accusation, the order of admitting the application in revision denotes that the order of permitting initiation of prosecution needs examination.
5. In such a state of affair, not granting of stay to proceeding before trial Court and permitting to continue such a prosecution, pending application in revision challenging the order, clearly appears to be wholly improper. In such circumstances, the order of rejection of application for stay of such type of an order cannot be legally sustained and deserves to be quashed and set aside.
6. The learned counsel for the respondent fairly submitted that the respondent will not proceed with the proceeding before the trial court until the application in revision preferred by the petitioners is decided. He requests for giving a direction for expeditious disposal of the said application.
7. Resultantly, order dated 26.06.2013 passed below Exh.-9 in Criminal Revision No. 51/2013 by learned Sessions Judge, Chandrapur, is hereby quashed and set aside. The Sessions Court is directed to dispose the application in revision at the earliest and, in any event, by the end of 15.09.2013. The interim stay granted by this Court vide order dated 29.07.2013 to continue till 15.09.2013.
Rule made absolute in above terms. No order as to costs.