PRERNA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the present Writ Petition, the petitioner challenges the order dtd. 17/5/2023 passed by Additional Sessions Judge, Aurangabad in Criminal Revision Application No.254/2022, thereby quashing and setting aside the order dtd. 3/3/2022 passed by the 15th Judicial Magistrate First Class in SCC No.1593/2022.

(2.) The learned counsel Mr. Ladda for the petitioner submits that the learned Revisional Court has committed an error apparent on the face of record in allowing the Criminal Revision in setting aside the well reasoned order dtd. 3/3/2022. The impugned order dtd. 17/5/2023 passed by the Additional Sessions Judge, Aurangabad reflects total non application of mind and as such relying upon the judgment in the case of Sayed Mohammed Omair Sayed Ibrahim and others Vs. State of Maharashtra and others reported in 2022 (3) Bom.C.R. [Cri.] 245, the First Appellate Court had allowed the revision erroneously. The learned Revisional Court has wrongly held that there is no prima facie evidence on record to show that verification of complainant was recorded, nor inquiry under Sec. 201 of Criminal Procedure Code was recorded. The learned counsel, therefore, submits that the impugned order is arbitrary, illegal and the same is liable to be quashed and set aside. He further relies upon the judgment of the Hon ble Apex Court in the case of Sunil Todi and others Vs. State of Gujarat and another reported in 2021 SCC OnLine SC 1174 whereby the Hon ble Supreme Court has laid down that the provisions of Sec. 202 of Criminal Procedure Code does not speak formal order nor a speaking order is required to be passed at the stage of issuance of process. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Sec. 202 CrPC, if any, the accused is answerable before the criminal Court, there is ground for proceeding against the accused under Sec. 204 Cr.P.C, by issuing process for appearance.

(3.) The learned counsel, therefore, submits that the order of issuance of process dtd. 3/3/2022 by the learned Magistrate clearly shows application of mind by the learned Magistrate inasmuch as the learned Magistrate has specifically stated that it has read the complaint, verification affidavit of complainant filed on record and conducted inquiry under Sec. 202 of Criminal Procedure Code in view of documents placed on record. It was also recorded that as the accused were residing beyond territorial jurisdiction of this Court, this Court has conducted inquiry under Sec. 202 of Cr.P.C. The learned Magistrate has also gone through the verification of the original cheque, cheque return memo, notice issued to accused, its postal acknowledgment, report showing the service of notice to the accused and power of attorney in favour of complainant. Thus, the learned Revisional Court has mechanically interfered with the order dtd. 3/3/2022 passed by the Magistrate, as such, the impugned order is liable to be quashed and set aside.