JUDGMENT
S.P. Kukday, J.
1. The petitioner has impugned order dated 11-3- 1998 passed by learned Judicial Magistrate, First Class, Omerga, recalling the order of issuing of process issued earlier.
2. The facts in nutshell are that petitioner is the son of respondent No. 7. Respondent No. 8 is his sister. Agricultural lands belonging to the family are recorded in the revenue record in the name of respondent No. 7, he is shown to be cultivating the lands. There is a dispute between the petitioner and his father regarding ownership of this field. According to the petitioner his father sold his share for Rs. 10,000/- and put him in possession of the entire agricultural land. The factum of possession is borne out by Civil Suit No. 278/1995 for partition and separate possession of his share of the land and Maintenance Petition No. 230/1995 filed by respondent No. 7. According to petitioner, several complaints were lodged against him, with Police Station. Taking advantage of these complaints, the respondent No. 9 who is a Police Constable, took him to Osmanabad and after bringing him back instituted proceedings Under Section 110 of the Code of Criminal Procedure. During this period i.e. during 30-1-1996 to 3-2-1996, respondents 1 to 11 forcibly harvested crop worth Rs. 21,000. His wife Ujwala made an effort to resist, but the respondent assaulted her and injury was caused to her on forehead, while taking away the crop. His labourers Manik and Laxman have witnessed this incident. As cognizance is not taken by the local police, the petitioner filed a private complaint being RCC No. 101/1996 in the Court of Judicial Magistrate, First Class, Omerga.
3. On verification, complainant was recorded on 18-4-1996 and on the same day an order Under Section 156(3), Criminal Procedure Code was passed, giving direction to the police for conducting investigation and submitting report. Later on, the successor of learned Magistrate gave direction to the complainant for leading evidence by order dated 3-8-1996. In pursuance of this order, one witness namely, Manik Sakharam Pawar came to be examined. On consideration of the material, learned Magistrate issued process against respondents 1 to 11 by his order dated 20-12-1996.
4. After their appearance, respondents 7, 10 and 11 filed an application for recalling the order regarding issue of process. Learned Magistrate rejected the objection that offence being triable exclusively by the Court of Sessions, all the witnesses should have been examined during enquiry Under Section 202 of the Criminal Procedure Code, in view of the settled position that the complainant can examine only those witnesses whose evidence makes out a prima facie case against the accused for issuance of process Under Section 204, Criminal Procedure Code 1973. Learned Magistrate, however, found that accepting the material on record as it is, no case for issuance of process in respect of offence punishable Under Section 395, Criminal Procedure Code is made out. In this view of the matter, relying on the judgment of the Supreme Court in the matter of K.M. Mathew v. State of Kerala and Anr. learned Magistrate recalled the process treating the order as interlocutory.
5. learned Counsel for petitioner has referred to subsequent ruling of the Supreme Court in the matter of Adalat Prasad v. Rooplal Jindal and Ors. reported in 2004 (4) Mh.L.J. 274, which overrules the view taken earlier in Mathew’s case (supra) regarding recall of the process issued Under Section 204 of the Criminal Procedure Code, 1973. It is observed in para No. 16 of the report that if the Magistrate takes cognizance of an offence and issues process without their being any allegation against the accused or any material implicating the accused or, in contravention of provisions of Sections 200 and 202, the order of Magistrate may be vitiated but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code, because Criminal Procedure Code does not contemplate review of the order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of the Code. As the Mathew’s case is overruled, contention of learned Counsel for petitioner that considering the law as it stands today, the present impugned order is clearly illegal, will have to’ be accepted.
6. The High Court has been invested with revisional jurisdiction. This is a supervisory jurisdiction and is to be exercised in cases where an illegality or impropriety is committed leading to miscarriage of justice. The powers or revision can be exercised suo motu or on the petition being filed by an aggrieved person. The principles in respect of exercise of revisional jurisdiction are now well settled, in the matter of Rameshchandra J. Thakur v. A.P. Jhaveri reported in AIR 1973 SC 84, the Apex Court in para No. 7 of the report observed :
7. It is no doubt true that the High Court acted suo motu in setting aside the acquittal of the appellant, but that fact would not show that there was any irregularity in the procedure adopted by the High Court. The opening words of Section 401 of the Code of Criminal Procedure viz., “in the case of any proceedings the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge”, as observed by this Court in the case of the State of Kerala v. Narayani Amma Kamala Devi produce the result that revisional jurisdiction can be exercised by the High Court by being moved either by the convicted person himself or by any other person or suo motu on the basis of its knowledge derived from any source whatsoever without being moved by any person at all. All that is necessary to bring the High Court’s powers of revision into operation is such information as makes the High Court think that an order made by a Subordinate Court is fit for the exercise of its powers of revision.
7. The principle that the revisional jurisdiction is to be exercised whenever any illegality or infirmity in the order passed by the lower Court leading to miscarriage of justice or undue harassment of the person concerned is brought to the notice of the High Court has now been acknowledged. For this purpose, reference can be made to the ruling of the Apex Court in the matter of Janata Dal v. H.S. Choudhary . In Para No. 130 of the said Report, it is observed :
130. The object of revisional jurisdiction Under Section 401 is to confer power upon superior criminal Courts – a kind of paternal or supervisory jurisdiction – in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case.
8. In the present case, in view of the subsequent decision of the Apex Court overruling the earlier decision in Mathew’s case, the impugned order regarding recall of process earlier issued, will have to be set aside. However, it can be noticed that after considering all the aspects and material on record, the learned Magistrate had come to the conclusion that a prima facie case has not been made out for issue of process Under Section 395 of the Indian Penal Code. In view of this finding, the Magistrate had recalled his earlier order for issuing the process. In Para No. 9 of the order, the learned Magistrate has considered the material on record and found that the witness Manik did mention that the accused assaulted Ujwala who tried to offer resistance, but complainant himself has not made any reference to this fact. It is further observed that Ujwala herself is not examined. Learned Magistrate had earlier rejected the contention that all the witnesses cited should have been examined during enquiry Under Section 202 of the Criminal Procedure Code as the offence is exclusively triable by the Court of Sessions. It is now well settled that the complainant can choose the witnesses and examine them. If the material on record justifies issuance of process, then, process can be issued and it is not necessary that complainant should examine all the witnesses. However, the fact remains that the material witnesses are required to be examined and the material on record should be sufficient to make out a prima facie case. In the present case, learned Magistrate found that the material does not disclose all the ingredients of Section 395 of the Indian Penal Code and came to the conclusion that no prima facie case for issuance of process in respect of offence punishable Under Section 395, Indian Penal Code is made out. Therefore, the question arises as to whether the matter should be remitted for fresh consideration in the facts and circumstances of this case.
9. learned Counsel for petitioner submits that the order regarding issuance of process has not been impugned before the Court, therefore, it is not open for this Court to consider the legality of order of issuance of process. According to learned Counsel, even if it is assumed that no prime facie case has been made out, proper course open to the Magistrate would be to discharge the respondents 1 to 11 at appropriate stage. However, as the order is not impugned, this Court cannot go into legality of the said order.
10. This contention of learned Counsel cannot be sustained. The Court can suo motu exercise revisional jurisdiction in case it comes to the knowledge of the Court that an illegality or impropriety has been committed by the lower Court which has resulted either in causing miscarriage of justice or inflicting undue hardship on the accused. The observations of the Apex Court in Janata Dal’s case (supra) has set the controversy at rest. The High Court can exercise powers of revision in a case where an illegality or impropriety committed by the lower Court has been brought to its notice in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. In the present case, learned Counsel for respondents 10 and 11 and learned APP have rightly pointed out that the matter relates to a civil dispute. Even otherwise, it can be seen that the allegation is against co-owner in respect of the undivided property belonging to the joint family. Therefore, by no stretch of imagination, it can be said that the ingredients of Section 395 of the Indian Penal Code are attracted. Having regard to the material on record, learned trial Magistrate has rightly come to the conclusion that the issue of process was not warranted. In these circumstances, referring the matter back after about eight years for merely completing formality would be an exercise in futility and cannot be justified, more particularly, when process had been withdrawn on the ground that no prima facie case was made out. As the trial Court has committed an illegality in issuing the process for offence punishable Under Section 395, Indian Penal Code; such an order cannot be allowed to stand. This is therefore, a fit case where the Court should exercise its revisional powers to prevent miscarriage of justice. In the light of this, the Revision is partly allowed. The impugned order dated 11-3-1998 passed by learned Judicial Magistrate, F.C. Omerga recalling the process being illegal, is quashed and set aside. However, as the order regarding issue of process itself is illegal, the said order cannot be maintained. Hence the order for issue of process is also quashed and set aside. In the result, respondents 1 to 11 are discharged. Rule is made absolute in above terms.