Partha Sarathy Sarkar vs State Of Maharashtra & Ors.

Despite service of notice, none appeared for respondent nos.3 to 5.

RULE. Rule made returnable forthwith.

Heard the learned Counsel appearing for the parties.

Since Mrs. Renuka Sirpurkar, on instructions, appear for respondent no. 2, Shri R.D. Bhuibhar is hereby discharged.

By way of this petition, the petitioner is challenging the order dated 05.05.2026 passed by the learned Magistrate below Exhibit 1, wherein the process was issued against the accused persons.

The petitioner in person submits that perusal of the impugned order would reveal that the impugned order has been passed without application of mind by the Magistrate. Though the complaint was filed by the Superintendent of District Court, Nagpur however the present petitioner is referred as the complainant, and not Superintendent of District Court. Though the petitioner is the original complainant at whose behest the perjury proceedings were initiated, however so far as the complaint wherein the present issue process order was passed is concerned, the complainant is the Superintendent of District Court and not the present petitioner. Under such circumstances, this fact itself suggests that the Magistrate has erroneously passed the impugned order. Even few Sections i.e. Sections 108 and 34 were deleted from the impugned order while issuing the process and therefore, he submits that it goes to the root of the matter. Though the order is in the favour of the original complainant, who has initiated perjury proceedings, however, it is trite law that while issuing of process, there ought to be application of mind. Absence of same would vitiate the entire order. Under such circumstances, he submits that the order of issuance of process be quashed and set aside by remanding it for fresh consideration.

On the other hand, the learned counsel appearing for respondent nos.1, 2 and 6 opposed the petition.

Learned Counsel appearing for respondent no. 6 submits that the order is in favour of the petitioner and therefore he ought not to have challenged the said order. However, since he has raised objections, appropriate order is prayed to be passed.

I have heard both the parties and perused the record. My attention is invited to paragraph 4 of the impugned order wherein the Court has observed that “the complainant submits that he was appointed as Deputy General Manager on 15.12.2006 and had an unblemished service record”. According to petitioner, the complainant is the Superintendent of District Court whereas the petitioner is the Deputy General Manager and therefore, according to petitioner, the Magistrate has erroneously considered the petitioner as a complainant and therefore, committed error. So far as this aspect is concerned, the petitioner is the original complainant, who has filed the application for initiation of action under Section 340 of the Code of Criminal Procedure. Thereafter, the application filed by the petitioner - original complainant was allowed and it was directed to initiate the proceedings under Section 340 of the Code of Criminal Procedure and accordingly the Superintendent of District Court has filed the complaint before the Court and in that context, it appears that the Court has referred the petitioner as a complainant. However, this cannot be said to be error and impugned order cannot be said to be bad in law.

So far as the other contention, regarding application of Sections 108 and 34 of the IPC, it was submitted that the Court has dropped those Sections although there is a prima facie case made out under those Sections. It is to be noted that the process was issued against the persons mentioned therein. Therefore so far as the invocation of other provisions are concerned, for example, Section 108 and 34 those can be considered at appropriate stage as provided in the CrPC. Therefore, I do not find any substance in the arguments advanced by the petitioner in person.

So the two grounds which are raised by the petitioner that in the impugned order the present petitioner was shown as a complainant and secondly, the application of Section 108 and 34 of the IPC was dropped, my above findings are restricted to these grounds only.

As the learned Counsel for respondent no. 6 submits that his right be reserved to challenge the same impugned order since he was summoned by the Trial Court. This Court has neither taken away a right of the respondent nos. 3 to 6 nor expressed any opinion about their involvement in the crime and further they are not precluded from challenging the order of issue process on the ground available to them. Therefore, the observations of this Court are restricted only to decide the issues raised by the petitioner-in-person.

Rule stands discharged. No costs.