All these three petitions are arising out of the order dt.30.11.2006 passed by the learned Judicial Magistrate No. 3, Jodhpur in the Complaint No. 1669/06, whereby he took cognizance against the petitioners u/s.228A IPC and summoned them through bailable warrants and the legal question involved in it, is also similar, therefore, they are being disposed-of by this common order.
Heard learned counsel for the parties.
While drawing the attention of this Court towards the judgment of Dhariwal Tobaco Products Ltd. v. State of Maharashtra decided by the Hon'ble Supreme Court on 17.12.2008 in Criminal Appeal No. 2055/2007, learned counsel for the petitioners has submitted that the scope of Sections 397 and 482 CrPC was widely discussed in the said judgment on account of the divergent views of the Bombay High Court in V.K Jain v. Pratap V. Padode reported in 2005 (30) Mh.L.J 778 and Vishwanaath Ramkrishna Patil v. Ashok Murlidhar Sonar, MANU/MH/0008/2002 and submitted that the law laid down in V.K Jain's case (supra) is not the good law in which it has been held that where alternative remedy is available u/s.397 CrPC, petition u/s.482 CrPC is not maintainable. Learned counsel submits on the basis of this judgment that this Court's view in Sanjay Bhandari v. State of Rajasthan reported in 2009 (1) CrLR (Raj.) 282 requires re-consideration. Learned counsel has strongly put his argument for review of Sanjay Bhandari's case (supra) by emphasizing on various decisions of the Hon'ble Supreme Court, which have been earlier discussed by this Court in Sanjay Bhandari's case (supra) including the case of Madhu Limaye v. State Of Maharashtra. reported in (1977) 4 SCC 551, Amarnath v. State of Haryana reported in (1977) 4 SCC 137, Adalat Prasad v. Rooplal Jindal reported in (2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra reported in (2004) 13 SCC 324. In the alternative, he has submitted that if the Court is of the view that these petitions are not maintainable u/s.482 CrPC, then the same be treated as revision petitions u/s.397 CrPC, because only the nomenclature has been given in these petitions u/s.482 CrPC.
While going through the various judgments including the judgment of this Court in Sanjay Bhandari's case (supra), I am of the considered view that all the arguments advanced by the learned counsel for the petitioners, have been discussed in Sanjay Bhandari's case by placing reliance on the larger Bench decision of Madhu Limaye's case (supra) and the ratio laid down in it requires no re-consideration by this Court.
So far as nomenclature is concerned, this Court could have treated this petition u/s.397 CrPC but in all these three petitions, the order of issuing summons has been issued in pursuance to the cognizance taken by the learned Judicial Magistrate and the remedy first lies before the learned Sessions Judge by way of revision petition u/s.397 CrPC as held by this Court in Natwarlal v. State reported in 2008 (1) CrLR (Raj) 617.
Therefore, these Misc. Petitions are not maintainable in view of the judgment of this Court in Sanjay Bhandari's case (supra). However, the petitioners can invoke remedy under Section 397 CrPC by way of filing revision before the appropriate Court and in that event, the time consumed in these Misc. Petitions, shall be excluded for the purpose of limitation.
In view of the above, these Misc. Petitions are dismissed.