VIDYA BALAKDAS KHOBRAGADE Vs. BALAKDAS SHRIRAM KHOBRAGADE

JUDGEMENT

(1.) By this application applicant prays for quashing and setting aside order dated 27.11.2007 passed by learned Additional Sessions Judge Bhandara in Criminal Revision Application No. 56 of 2007 wherein the revision application was allowed on 27.11.2007 by the impugned order which was passed in respect of Ex. 81 in Criminal Case No. 54 of 1997 pending before the Judicial Magistrate First Class Pawani.

(2.) Heard submissions at the bar. It appears that case of the applicant herein is that the complaint was lodged regarding the accused No. 1 Balakdas Shriram Khobragade who was husband of the applicant and who entered into second wedlock during the subsistence of first marriage with the applicant. In a complaint lodged under Sections 494, 199, 464, 465, 466 read with Section 34 of Indian Penal Code against Balakdas Shriram Khobragade and second wife Kavita Balakdas Khobragade the complainant had prayed for issuance of summons to accused No. 2 Kavita Balakdas 3 Khobragade. Learned Judicial Magistrate First Class, Paoni by order dated 27.08.2007 after hearing the complaint as also the objection raised by the accused No. 1 passed an order for issuance of summons to accused No. 2 with a view to hear and decide the case on merits against her. The said order passed below Ex. 81 in Misc. Criminal Case No. 54 of 1997 on 27.08.2007 was challenged before the learned Additional Sessions Judge, Bhandara who after making the reference to ruling in Everest Advertising (P) Ltd. v. State Govt. of NCT Of Delhi and Ors.,2007 6 BLJ 49 observed that learned Magistrate had no jurisdiction to recall the summons. Learned Additional Sessions Judge was pleased to allow the revision application while setting aside the order passed by learned Judicial Magistrate First Class below application Ex. 81.

(3.) It is the grievance of the learned Advocate for the applicant that ruling referred to by learned Additional Sessions Judge 1, Bhandara in Everest Advertising (P) Ltd. v. State Govt. of NCT of Delhi and Ors.,2007 6 BLJ 49 was not attracted at all in the facts and circumstances of 4 the case because in the present case the application was moved only for issuance of summons to accused No. 2 against whom also complaint was filed and pending and learned Judicial Magistrate First Class after hearing the parties before the Court was pleased to issue summons to accused No. 2. Thus there was no question of recalling the summons on the ground that it was not previously issued. It thus appears from the order which was recorded by learned Judicial Magistrate First Class, Paoni in Misc. Criminal Case No. 54 of 1997 (below Ex. 81) that the complaint proceedings were pending before the learned Judicial Magistrate First Class and evidence of the complainant was not yet concluded, cross examination of some of the witnesses was not undertaken and on the ground that the case will be heard on merits; learned trial Court with a view to avoid multiplicity of proceedings chose to issue summons against accused No. 2.