Hasan Bandubhai Shaikh vs K.T. Kulkarni and others

This revision application has been filed by the aggrieved complainant challenging the, order of the learned Additional Sessions Judge, Solapur, by which order, the Additional Sessions Judge allowed the revision application and set aside the order of the learned Judicial Magistrate, F.C., by which order, he had directed issue of process against Respondents Nos. 1 to 7 in this case. It is not necessary to state the facts in greater detail. Suffice it to say that Respondents Nos. 1 to 7 belong to the Police force and were working at the relevant time at Akkalkot, District Solapur. The complainant''s grievance, as could be gathered from the judgment of the learned Additional Sessions Judge, was that Accused No. 1 came to the Video Parlour, owned by his son, on 6th October, 1986 and after making enquiries, he remarked that the owner had no proper licence. He further stated that accused No. 1 demanded a bribe of Rs. 200/- per month and threatened that in case it was not paid, he would stop the exhibition of further shows and thereafter left the place. Then the complainant approached the Entertainment Officer Mr. Ausekar and Mr. Ausekar allowed him to continue the exhibition of shows and on 7th October, 1986 he actually visited the Video Theatre and asked him not to show any document to accused No. 1 and to that effect made an endorsement in the register.

In spite of this, according to the complainant, on 23rd October, 1986 one constable Padwalkar came to the house of the complainant and threatened the complainant stating that he should pay a bribe of Rs. 20,000/- as a blue film was being shown in the Video Theatre. He further threatened the complainant that if the bribe was not given, Accused No. 1 would effect a raid on the Video Theatre. Thereafter the complainant told him that he would not give him any bribe and he should leave the place.

Annoyed by this approach of the complainant, the accused No. 1 along with other Police Constables attached to his Police Station went to the Video Theatre of the complainant''s son, seized the property and brought it back to the Police Station.

On these allegations, the complainant filed a complaint in the Court of the Judicial Magistrate, F.C. who himself, as could be seen from the order of the learned Additional Sessions Judge, examined witnesses and was thereafter pleased to issue process under sections 218, 220, 319, 347, 427 read with Section 34 of the Indian Penal Code and also u/s 147 of the Bombay Police Act.

Aggrieved by this order of issue of process, 7 of the 9 Police Officials approached the Sessions Court by filing Revision Application No. 249 of 1987. On 5th March, 1988, the impugned order was passed by the learned Additional Sessions Judge against which the present revision application has been filed. I have heard the learned Advocate appearing for the revision applicant and the learned Public Prosecutor Shri Raje. It was urged on behalf of the revision applicant that the order of issue of process was an interlocutory order and, therefore, the learned Additional Sessions Judge was not right in entertaining the revision application u/s 397 of the Code of Criminal Procedure. According to his submission, there is a bar in entertaining any revision application against the interlocutory order. He has relied upon the decision of this Court Maheshwari Cotton Company Vs. Shakuntaladevi Zunzunwala and Others, in the case of Maheshwari Cotton Co. v. Shakuntaladevi. Precisely the same question which has arisen before the learned single Judge, has arisen in this matter. There the order of issue of process was set aside by the Sessions Judge and against that order, revision application was filed. The learned Judge held that it was not proper on the part of the learned Additional Sessions Judge to entertain the order of issue of process which was in terms of interlocutory order and, therefore, not revisable u/s 397 of the Code of Criminal Procedure. According to the learned Judge, the remedy lies u/s 482, Cr.P.C. Reliance has been placed upon the decision of the Supreme Court, in this case, reported in Roshanali Burhanali Syed Vs. State of Gujarat, . The observations of the Supreme Court are quoted in that judgment. They are as follows :

"If eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing "summons" to the accused should be quashed. We, therefore, set aside the orders passed by the Sessions Court and the High Court, restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2, 1979, and remit the matter to the trial Court for disposal in accordance with law."

Respectfully following the observations made by the Supreme Court in the above quoted decision, relied upon by the learned single Judge, I hold that the revision application u/s 397 of the Code of Criminal Procedure, entertained by the learned Additional Sessions Judge was not correct. Accordingly the rule will have to be made absolute.

The order of the Additional Sessions Judge is quashed. Rule made absolute in the above terms. Trial to proceed.

Order accordingly.