MURLI INDUSTRIES LTD Vs. OMPRAKASH MANIRAM AGRAWAL

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally by consent of the parties. 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.

(2.) 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.

(3.) 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.