VASHU GOKALDAS KUKREJA Vs. MEENA VASHU KUKREJA

JUDGEMENT

(1.) HEARD Shri Kotwal, learned Counsel for the petitioner and Shri Agarwal, the learned Counsel for respondent No. 1. In R. C. No. 196 of 1992 filed before the Judicial Magistrate, First Class at Ulhasnagar by the present respondent No. 1-wife, an application at Exhibit-81 came to be filed by the present petitioner-husband on or about 2-1-2003 praying for recall of the process and in turn, discharge of the accused on the ground that before the process was issued, list of witnesses was not submitted and therefore, under section 204 (2), the process could not have been issued. The complainant also filed an application at Exhibit-87 on or about 7-1 -2003 seeking permission to submit the list of witnesses. Both these applications came to be decided on the same day i. e. 27-3-2003, but by different orders. The application at Exhibit-87 was allowed. Thus, the list of witnesses by the complainant-wife came on record, whereas the application at Exhibit-82 filed by the present petitioner came to be rejected. The learned Magistrate held that as on the day when these application were being heard, the list of witnesses along with Exhibit-87 was already on record and once the application was allowed, the application at Exhibit-82 could not survive.

(2.) SHRI Kotwal, learned Counsel for the present petitioner referred to the judgment of this Court (Dr. (Mrs.) Pratibha Upasani, J.) in the case of (Bhiku yashwant Dhangat and others v. Baban Maruti Barate and another}1, reported in 2001 (5) Bom. C. R. 69 and another judgment in the case of (Pramila Mahesh shahv. Employees State Insurance Corporation, Nagpurand another)2, reported in 2002 (Cri. Supp.) Bom. C. R. (N. B.)261 : 2002 (2) Mh. L. J. 100 and submitted that both the views being conflicting in nature, a reference to a larger Bench is required to be made.

(3.) SHRI Agarwal, learned Counsel appearing for the respondent-wife referred to the provisions of section 465 of the Criminal Procedure Code and submitted that the application at Exhibit-82 carne to be filed almost after more than ten years and any objection to the order of process was required to be taken at the earliest point of time. This belated application, when it came up for consideration, the list of witnesses was already submitted to the Court and, therefore, it has been rightly rejected. He has also referred to a series of decisions of this Court and submitted that while deciding the case of Pramila Shah (supra), this Court (Batta, J.) has held that the earlier decision in the case of bhiku Y. Dhangat (supra) was per incuriam. It is noted that Bhiku's case was decided on 6-6-2000 whereas Pramila's case has been decided on 15-10-2001 and in the latter case, reference was made to the earlier decision and specifically observed that it was per incuriam. Shri Agarwal referred to the following decisions of this Court; (a) (Emperorv. Nagindas Narottamdas Gandhi)3, reported in A. I. R. 1942 Bom. 214; (Division Bench), (b) (Shashi Nair v. R. C. Mehta and another)4, reported in 1982 (1) Bom. C. R. 358 (Single Bench); (c) (Madhaorao pandurangv. Yashwant)5, reported in 1969 Mh. L. J. 21 (Single Bench); and (d) (Narayanv. Smt. Lakshmi and others)6, reported in 1989 (3) Crimes 503 (Single bench) and submitted that this Court consistently had taken a view that the requirements of section 204 (2) were not mandatory and they were directory in nature inasmuch as failure to submit the list before the process was issued was a curable defect and this could be corrected at an appropriate time. In the case of Pramila Shah (supra) this Court also referred to the Full Bench decision of the High Court of Jammu and Kashmir in the case of (Abdullah Bhat v. Ghulammohd. Warn)7, reported in 1972 Cri. L. J. 277.