LAWS(BOM)-1989-9-53

KISHANLAL S O GIRDHARLAL DAYAMA Vs. PARWATIBAI

Decided On September 05, 1989
KISHANLAL GIRDHARLAL DAYAMA Appellant
V/S
PARWATIBAI, NARSINGDAS (TAPSI MAHARAJ) Respondents

JUDGEMENT

(1.) ORIGINAL accused number 3 in Criminal Case No. 65 of 1987, which is styled as Regular Criminal Case Number 65 of 1987 in the Court of the Chief Judicial Magistrate, Nanded has come to this Court to challenge the order of issue of process against him and two other under section 295 of the Indian Penal Code.

(2.) BRIEFLY stated, the facts giving rise to this petition are as under:---Parvatibai, the complainant who is a resident of Nanded, filed a complaint against the present petitioner and two others contending that she is owner and in possession of house and open space towards the southern side of her house, and that near the said house, there is a Gayatri temple, of which, respondent No. 1 is the priest an accused number 3 is the Trustee, whereas accused number 2 is the son-in-law of accused No. 1, and they reside near the said temple. It is further alleged in the complaint that the husband of the complainant died about 25 to 30 years back and since after his demise, the complainant raised a Samadhi in front of her house of her husband; and that the complainant used to worship the said Samadhi and has a spiritual attachment to the same. It is further stated that the accused numbers 1 to 3 were trying to dispossess the complainant of her house and open space as they were interested in expanding the Gayatri temple and that on 20th June, 1986, the complainant alongwith her mother left Nanded and went to Jagannathpuri on a pilgrimage and she had instructed one Ratandas Haridas to look after her house till her return. It is said that she returned from Jagannathpuri on 28th June, 1986 and found that the Samadhi of her husband was defaced, and damaged and the Almariah near the Samadhi was broken and certain valuable securities and document worth Rs. 800/- which were in the almariah, were missing. She then enquired about the same with accused number 1; but he abused her and also told her that he, alongwith accused numbers 2 and 3 had destroyed the Samadhi to teach a lesson to her and further takes up the matter with the police. She further claimed that she thereafter enquired with Ratandas and learnt from him that on 26th June, 1986 at about 8. 30 p. m. , he had seen accused numbers 1 to 3 coming with iron rods and destroying the Samadhi and breaking the almirah near the Samadhi and throwing the documents which were in the almirah and that while destroying the Samadhi, they were abusing and assailing the Samadhi and her character and also her husband. She also claimed that Ratandas also told that he, Shankardas, Devidas and Nagorao had tried to prevent accused numbers 1 to 3, but they could not succeed. She also claimed that Ratandas had also told that he had actually sent a complaint to the Police Station Vazirabad on 26th June, 1986. She also claimed that on 3rd July, 1986 and on 5th August, 1986, she filed complaint with the Police Station Vazirabad, but as no action was taken by the police, she was required to file a complaint in the Court of law.

(3.) THE complaint is filed on 23rd February, 1987. It appears that the verification statement of the complainant came to be recorded on 23rd February, 1987. The learned Chief Judicial Magistrate passed an order directing the complainant to file affidavits of witnesses numbers 2 to 5 within fifteen days and further stated that after filling of their affidavits, further order would be passed. Thereafter, it appears that on 27th March, 1987, when the complainant and her Advocate were absent and though the affidavits as directed by the learned Chief Judicial Magistrate were not filed, he ordered to issue the process under section 395 of the Indian Penal Code against accused numbers 1 to 3. Against the said order of issue of process, the present petitioner i. e. the original accused number 3 preferred a Revision Petition bearing Criminal Revision No. 156 of 1987 in the Court of the Sessions Judge, Nanded. It appears that the learned Sessions Judge dismissed the Revision Petition holding that the Revision Petition was not maintainable as the order of issue of process is an interlocutory order and he relied on the decision reported in 1987 Mah. L. R. 1269 (M/s. Maheshwari Cotton Company v. Smt. Shakuntala Devi and others) The learned Sessions Judge, in view of the above said decision of the High Court observed that the Revision Petition was not maintainable as order section 204 of the issuance of process is an interlocutory order and the petitioner should move the High Court under section 482 of the Criminal Procedure Code.