JYOTI BANSILAL KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this application the applicant who is accused in Criminal complaint Case No. 666/2002 filed by respondent No. 2 pending before the Additional chief Judicial Magistrate, Nagpur takes exception to order dated 21. 10. 2005 dismissing the Criminal Revision Application no. 324/2004 against the order dated 9. 6. 2004 passed by learned Magistrate refusing to recall process issued against the applicant for offence punishable under section 500 of the Indian Penal Code.

(2.) Respondent No. 2 filed Criminal Complaint case No. 666/2002 against the applicant alleging offence punishable under section 500 of the Indian Penal Code. On 9. 7. 2003 process was issued against the applicant for offence punishable under section 500 of the Indian Penal Code. Relying upon the judgment of the Apex Court in (K. M. Mathew Vs. State of Kerala and another) , 1992 (1) Supreme Court Cases 217, the applicant-accused made an application for recall of process which was dismissed by learned Magistrate by the order dated 9. 6. 2004. The applicant preferred Criminal revision Application No. 324/2004 to the sessions Court which was made over to 5th additional Sessions Judge, Nagpur. During the pendency of the criminal revision application, the Apex Court in (Adalat prasad Vs. Rooplal Jindal and others) , 2004 (2) Bom. C. R. (Cri. ) (S. C. ) 857:2004 (4) Mh. L. J. 274 held that the application for recall of process was not maintainable and held that law laid down in Mathew's case was not the correct law. Faced with the judgment, the applicant filed pursis stating that in case the revision is held not maintainable against the order refusing to recall process, the same be treated as revision against the order of issuing process. The learned 5th Additional Sessions Judge, Nagpur held that in view of the judgment of Apex Court in Adalat Prasad's case (supra) the revision was not maintainable and granted 15 days' time to the applicant to take appropriate steps. The learned Judge did not decide the revision application on merits.

(3.) When the applicant filed revision application on 6. 7. 2004, the law laid down by the Apex Court in K. M. Mathew's case held the field. That being the position at the relevant time remedy by way of revision was available to the applicant against an order passed by the Magistrate refusing to recall the process. It is only thereafter that the judgment in Adalat Prasad was delivered holding that an application for recall of process is not maintainable.