DADALAL SHANKAR PATILversusSTATE OF MAHARASHTRA AND ORS

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                     WRIT PETITION NO. 2627 OF 2024


                   Dadalal Shankar Patil
                   Age: 59 years, Occ: Service,
                   R/o Waladgaon, Tq Shrirampur,
                   Dist. Ahmednagar                                        ..Petitioner
                                                                     (Org Respondent)
                         Versus

                   1. The State of Maharashtra
                      Through Police Station Officer,
                      Railway Police Station, Manmad
                      Dist. Nashik.
                      (Copy to be served on the Public Prosecutor,
                       High Court of Judicature, Bombay.

                   2. Kapil Bhausaheb Pawar,
                      Age: 38 years, Occ: Service.
ARUN
RAMCHANDRA
SANKPAL
                   3. Vaibhav Sambhaji Rohom
                      Age: 30 years, Occ: Agri.
Digitally signed
by ARUN
RAMCHANDRA
SANKPAL
                   4. Swapnil Arun Waghmare
Date: 2026.03.24
22:06:45 +0530
                      Age: 30 years, Occ: Service,
                      Res No. 2 to 4 are R/o.
                      Kopargaon, Tq Kopargaon,
                      Dist. Ahmednagar.

                   5. Trilok Prabhakar Pawar,
                      Age: 31 years, Occ: Agri.,
                      R/o Hingani, Tq. Kopargaon,                       …Respondents
                      Dist. Ahmednagar.                              (Resp Nos. 2 to 5 Org
                                                                      Applicants/Accused)

                                                     WITH
                                    WRIT PETITION NO. 2628 OF 2024


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Dadalal Shankar Patil
Age: 59 years, Occ: Service,
R/o Waladgaon, Tq Shrirampur,
Dist. Ahmednagar                                           ..Petitioner
                                                     (Org Respondent)
      Versus

1. The State of Maharashtra
   Through Police Station Officer,
   Railway Police Station, Manmad
   Dist. Nashik.
   (Copy to be served on the Public Prosecutor,
    High Court of Judicature, Bombay.

2. Rajendra Amrut Kapgate
   Age: 55 years, Occ: Service.

3. Pankaj Nagin Patil
   Age: 40 years, Occ: Service.

Res. Nos. 2 and 3 are R/o K.B.P.
Sanjeevani College, Kopargaon,                          …Respondents
                                                     (Resp Nos. 2 & 3 Org
Tq Kopargaon, Dist. Ahmednagar.                       Applicants/Accused)




Mr. Nitin Gaware Patil, with Divyesh K Jain, for the Petitioners in both
      Petitions.
Mr. D.J. Haldankar, APP, for Respondent No.1-State in both Petitions.
Mr. Tushar Sonawane, for Respondent Nos. 2 to 5 in WP/2627/2024
      and Respondent Nos. 2 and 3 in WP/2628/2024.


                               CORAM: N. J. JAMADAR, J.
                       RESERVED ON : 5th MARCH 2026
                   PRONOUNCED ON :          24th MARCH 2026


JUDGMENT:




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1.    Rule. Rule made returnable forthwith and, with the consent of

the learned Counsel for the parties, heard finally.

2.    These Petitions under Articles 226 and 227 of the Constitution of

India and Section 482 of the Code of Criminal Procedure, 1973 (“the

Code”) call in question the legality, propriety and correctness of the

impugned orders dated 6th January 2024 passed by the learned

Additional Sessions Judge, Malegaon in Criminal Revision Application

No. 90 of 2023 and Criminal Revision Application No. 95 of 2023,

whereby the Revision Application No. 90 of 2023, preferred by

Respondent Nos. 1 to 4 —Accused, came to be allowed, and the

Revision Application No. 95 of 2023, preferred by the Petitioner, against

the order dated 3rd March 2021, passed by the learned Magistrate,

Manmad, thereby dismissing the complaint preferred by the Petitioner

against Respondent Nos. 2 and 3—Accused Nos. 5 and 6 in Writ Petition

No. 2628 of 2024, came to be dismissed.

3.    Shorn of unnecessary details, the background facts leading to this

Petition can be stated as under:

3.1   The Petitioner had a son, Pratik. He was enrolled in KBP

Polytechnic College at Kopargaon. Respondent Nos. 2 to 4 in Writ

Petition No. 2627 of 2024—Accused Nos. 1 to 3, were classmates of

Pratik in the second year of the course. Respondent No. 5—Accused No.

4 was their teacher. Respondent Nos. 2 and 3 in Writ Petition No. 2628


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of 2024— Accused Nos. 5 and 6, were the then Principal and supervisor

of the hostel wherein Pratik was staying, respectively.

3.2   The Petitioner alleged, Respondent No.5—Accused No.4 had

entrusted task of collecting fees from the students to Pratik. Disputes

arose over the collection of the fees from the tuition-mates of Pratik and

the payment thereof to Accused No.4. It is the allegation of the

Petitioner that few days prior to the occurrence, the Accused –

tuitionmates of Pratik had assaulted Pratik over the said matter and the

incident was related to him by Pratik.

3.3   On the night intervening 26 th and 27th September 2010, a body of

an unknown person was found on the railway tracks. On the next day,

the dead body was identified to be that of Pratik. Highlighting various

suspicious circumstances, the Petitioner lodged a private complaint

before the learned Magistrate alleging inter alia that the Accused had

killed the deceased and a pretence of railway accident was made.

3.4   By an order dated 7th June 2011, the learned Magistrate directed

registration of the FIR and investigation under Section 156(3) of the

Code. Railway police, Manmad filed a C-Summary report.

3.5   The Petitioner preferred a protest Petition. By an order dated 30 th

July 2012, the learned Magistrate decided to conduct an enquiry under

Section 202 of the Code and directed the Petitioner-complainant to

examine himself and also all his witnesses on oath. After examining


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almost 15 witnesses, the learned Magistrate by an order dated 10 th

December 2015, rejected the prayer of the complainant to issue process

under Section 204 of the Code and instead again directed PSO, Railway

Police Station, Manmad, to register the offence and re-investigate the

case and submit a report under Section 156 (3) of Code.

3.6   Being aggrieved, the Respondents-Accused preferred Revision

Application before the Sessions Judge, Ahmednagar. By an order dated

29th March 2017, the said Revision Application was dismissed with a

direction to Respondents-Revision Applicants to file Revision before the

Sessions Judge, Nashik.

3.7   Being further aggrieved, the Respondents— Accused preferred

Criminal Writ Petition No. 620 of 2017. By a judgment and order dated

5th March 2019, the High Court, Bench at Aurangabad, allowed the

Petition, set aside the order of the learned Magistrate dated 10 th

December 2015 directing the re-investigation under Section 156(3) of

the Code and remanded the complaint back to the learned Magistrate to

follow the procedure as enshrined in the Code, after taking cognizance

of the matter under Section 202 of the Code. This Court inter alia

recorded that since the offence punishable under Section 302, allegedly

committed by the accused, was exclusively triable by the Court of

Session, in view of the provisions contained in Section 202(1)(a) of the

Code, the Magistrate could not have directed re-investigation and ought


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to have proceeded in accordance with the provisions contained in

Chapter XV of the Code.

3.8   Post remand, by an order dated 3 rd March 2021, the learned

Magistrate was persuaded to issue process for the offence punishable

under Sections 302 and 201 read with Section 34 of the Indian Penal

Code, 1860 (“the Penal Code”)against Accused Nos. 1 to 4—Respondent

Nos. 2 to 5 in Writ Petition No. 2627 of 2024, under Section 204 of the

Code, and dismiss the Complaint qua Accused Nos. 5 and 6, Respondent

Nos. 2 and 3 in Writ Petition No. 2628 of 2024, under Section 203 of

the Code.

3.9   The learned Magistrate was of the view that the specific

allegations made by the Petitioner-complainant, in the light of the

evidence and material on record, were sufficient to call upon the

accused to explain the accusation. Prima facie complicity of Accused

Nos. 1 to 4 was evident.

3.10 Being aggrieved by the order dismissing the complainant qua

Acccused Nos. 5 and 6, under Section 203 of the Code, the Petitioner

preferred Revision Application No. 95 of 2023. Whereas being

aggrieved by the order of issuance of process for the offences

punishable under Sections 302 and 201 read with Section 34 of the

Penal Code, Accused Nos. 1 to 4 preferred Revision Application No. 90

of 2023.


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3.11 By the impugned orders of even date, the learned Additional

Sessions Judge allowed the Revision Application, preferred by Accused

Nos. 1 to 4, and dismissed the Revision Application preferred by the

Petitioner, observing inter alia that the order dated 10th December 2015

passed by the learned Magistrate, thereby declining to issue process

agains the Accused under Section 204 of the Code had attained finality

as the Petitioner-complainant had not assailed the said order. The

Respondent-Accused had assailed only the direction issued by the

learned Magistrate to register the FIR and re-investigate the matter.

Thus even after remand of the matter back to the Court of the learned

Magistrate, pursuant to the order passed by the High Court in Writ

Petition No. 620 of 2017, the only course that was open to the learned

Magistrate was to pass an order of dismissal of the complaint under

Section 203 of the Code. In the view of the learned Additional Sessions

Judge, two contrary orders could not have been passed by one and the

same Court. Resultantly, the Revision Application filed by the Petitioner

also came to be dismissed.

3.12 Being    further   aggrieved   and     dis-satisfied     the   Petitioner-

complainant has invoked the writ jurisdiction.

4.    I have heard Mr. Nitin Gaware Patil, the learned Counsel for the

Petitioner, in both Petitions, Mr. Tushar Sonawane, the learned Counsel

for Respondent Nos. 2 to 5 in Writ Petition No. 2627 of 2024 and for


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Respondent Nos. 2 and 3 in Writ Petition No. 2628 of 2024 and Mr. D.J.

Haldankar, the learned APP, for Respondent No.1-State, in both the

Petitions.

5.    Mr. Gaware Patil, the learned Counsel for the Petitioner would

submit that the Petitioner, who has lost his son, is knocking the door of

justice for over 15 years and the proceedings have yet not crossed the

stage of issuance of process. The learned Additional Sessions Judge,

according to Mr. Gaware Patil completely misconstrued the import and

implications of the judgment and order passed by this Court in Writ

Petition No. 620 of 2017. The learned Single Judge had interfered with

the order dated 10th December 2015, directing the police to re-

investigate the matter under Section 156 (3) of the Code, as the learned

Magistrate could not have switched back to the provisions contained in

Section 156 (3) of the Code, after taking the cognizance of the matter

and making the enquiry under Section 202 of the Code.

6.    Mr. Gaware Patil was at pains to drive home the point that the

order of remand of the complaint back to the Court of learned

Magistrate, plainly implied that the learned Magistrate had to conduct

enquiry under Section 202 of the Code and pass an appropriate order.

The order passed by this Court nowhere suggested that the earlier order

of rejection of the prayer to issue process under Section Section 204 of




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the Code had attained finality, as was erroneously held by the learned

Additional Sessions Judge.

7.     In opposition to this, Mr. Tushar Sonawane, the learned Counsel

for   the   Respondents-Accused,      strenuously   submitted    that   the

Respondents-Accused have suffered grave prejudice on account of the

very pendency of the proceeding as the process itself has become a

punishment. On account of the pendency of the complaint and the

related proceedings, the Respondents, especially Respondent Nos. 1 to

4, have lost many opportunities in life. A case of pure accident has been

relentlessly pursued as a homicidal death by the Petitioner sans any

material.

8.     Mr. Sonawane further submitted that, there is neither any

jurisdictional error nor any legal infirmity in the impugned orders.

Indisputably, the order passed by the learned Magistrate on 10 th

December 2015 categorically declining to issue the process against

Respondents-Accused under Section 204 of the Code, was not assailed

by    the   Petitioner-complainant.    The   Respondents-Accused        had

challenged the direction by the Magistrate to register the FIR and re-

investigate the case under Section 156 (3) of the Code. It was in the

Petition arising out of the said challenge, the High Court had remanded

the matter back to the Court of the learned Magistrate.




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9.    The learned Additional Session Judge was, therefore, fully

justified in observing that the order declining to issue process under

Section 204 of the Code had attained finality, as there was no challenge

to the said part of the order passed by the learned Magistrate. Once the

issuance of process was declined by the learned Magistrate and the said

order was upheld by the High Court, the only course open for the

learned Magistrate was to dismiss the complaint under Section 203 of

the Code. Thus, in exercise of supervisory jurisdiction, this Court ought

not to interfere with the impugned orders, especially having regard to

the time that has elapsed, submitted Mr. Sonawane.

10.   In the light of the facts narrated above and the submissions

canvassed across the bar, the moot question that come to the fore is the

legal import and implications of the order passed by this Court in

Criminal Writ Petition No. 620/2017. The learned Additional Sessions

Judge was of the view that, despite the setting aside of the order dated

10th December, 2015 passed by the learned Magistrate directing Police

to re-investigate the matter under Section 156(3) of the Code and

remanding the matter back to the learned Magistrate to follow the

procedure under Section 202 of the Code, the only course open to the

learned Magistrate was to dismiss the complaint under Section 203 of

the Code, as by the said order the learned Magistrate had declined the

prayer of the complainant to issue process under Section 204 of the


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Code. Whether this impression of the learned Additional Sessions Judge

is legally sustainable ?

11.   To explore an answer to the aforesaid question, it would be

apposite to extract the relevant part of the order passed by this Court in

Criminal Writ Petition No. 620/2017 so as to properly appreciate the

import of the said order, especially the nature of the remand. The

observations in the Paragraph No. 4 of the said order, and the operative

order that follows Paragraph No. 4, read as under:

             “4.    The learned counsel for the petitioner placed reliance on
             some reported case like (2017) 4 Supreme Court Cases 177,
             (Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel
             and others). The Apex Court has discussed the power of the
             Magistrate under Section 202 of the Code of Criminal Procedure
             and also under Section 173(8) of the Code of Criminal
             Procedure. In any case, the scheme of the Act itself shows that if
             the Magistrate takes cognizance of the matter and starts making
             inquiry under Section 202 of the Code of Criminal Procedure,
             that too in a case which is triable by the Court of Sessions, the
             only recourse open to him is to record the statements of all the
             witnesses, who are produced by the complainant, and then
             decide as to whether the case is made out to issue process. After
             taking cognizance of the matter and making inquiry under
             Section 202 of the Code of Criminal Procedure, it is not open to
             the Magistrate to revert back to Section 156(3) of the Code of
             Criminal Procedure. If the Magistrate wanted to see that more
             investigation is made before making order of inquiry under
             Section 202 of the Code of Criminal Procedure, the Magistrate
             could have made order of further investigation under Section
             156(3) of the Code of Criminal Procedure. As that was not
             done, now the Magistrate cannot make such order. Further, the


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            report of the concerned Police Station submitted after making
            investigation on the basis of previous order does not show that
            this report can be treated as one under Section 202 of the Code
            of Criminal Procedure. The Magistrate had no jurisdiction in the
            present matter to direct the police to make investigation as
            there was allegation of murder and the case would have been
            triable by the Court of Sessions in view of Section 202 (1) (a) of
            the Code of Criminal Procedure. Thus, the order under
            challenge could not have been made by the Magistrate and that
            needs to be set-aside. In the result, following order :-
                                          ORDER
                  1.       The petition is allowed.
                  2.       The order of the learned Judicial Magistrate
                  (F.C.), Manmad (Railways) dated 10.12.2015, passed
                  in Regular Criminal Case No. 34 of 2011, directing
                  Police to re-investigate the matter under Section
                  156(3) of the Code of Criminal Procedure is hereby
                  set-aside.
                  3.       The matter is remanded back to the learned
                  Judicial Magistrate, First Class, Manmad (Railways)
                  to follow the procedure as given in Code of Criminal
                  Procedure after taking cognizance of the matter
                  under Section 202 of the Code of Criminal Procedure.
                  Rule made absolute in the aforesaid terms.”



12.    Evidently, this Court was of the view that, after taking

cognizance of the matter and making an inquiry under Section 202 of

the Code, it was not open to learned Magistrate to relegate the matter

back to Section 156(3) of the Code. The Magistrate could have made an

order for further investigation under Section 156(3) of the Code before

proceeding to conduct an enquiry under Section 202 of the Code. Nor


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the Magistrate could have directed the Police to conduct an

investigation within the meaning of Section 202 of the Code, as it was

alleged that an offence punishable under Section 302 of the Indian

Penal Code, 1860 was committed and, thus, the interdict contained in

clause (a) of the proviso to sub-Section (1) of Section 202 of the Code

was attracted.

13.   From the perusal of the aforesaid observations it also becomes

evident that, this Court had adverted to the decision of the Supreme

Court in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai

Kantibhai Patel & ors1., to draw support to the view that after taking

cognizance of the matter, it was not open to the Magistrate to switch

back to Section 156(3) of the Code.

14.   It would be contextually relevant to note that, the aforesaid

decision in Amrutbhai Shambhubhai Patel (Supra) was subsequently

overruled by a three-Judge Bench of the Supreme Court in the case of

Vinubhai Haribhai Malaviya & ors. Vs. State of Gujarat & anr. 2 The

Supreme Court enunciated that, the ‘investigation’ spoken of in Section

156(3) would embrace the entire process, which begins with the

collection of evidence and continues until charges are framed by the

Court, at which stage the trial can be said to have begun. The definition

of “investigation” under Section 2(h) of the Code of Criminal Procedure,


1     (2017) 4 SCC 177
2     (2019) 17 SCC 1
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1973, was not noticed by the judgments which held to the contrary,

resulting in the erroneous finding in law that, the power under Section

156(3) of the Code can only be exercised at a pre-cognizance stage. It

was thus held that, when Section 156(3) states that a Magistrate

empowered under Section 190 may order “such an investigation”, such

Magistrate may also order further investigation under Section 173(8) of

the Code, regard being had to the definition of “investigation” contained

in Section 2(h). However, the said clarification in law by the Supreme

Court in the case Vinubhai Haribhai Malaviya (supra), does not bear

upon the controversy at hand.

15.   The core controversy revolves around the nature of the aforesaid

order of remand. Was the remand of a limited or restricted nature ? Or,

whether the complaint stood fully restored to file of the Magistrate for

further proceeding under Section 202 of the Code and passing further

orders under the Code?

16.   When the appellate or superior court remands a matter back to

the Court of first instance or the Appellate Court, as the case may be,

ordinarily, the entire matter remains open for consideration by the said

Court, unless the order of remand is restrictive in nature and

circumscribes the scope of adjudication or determination by the Court

to which the matter is remanded. In case, the remand is with specific

directions restricting the scope of adjudication, undoubtedly, the Court


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of first instance/lower Appellate Court would be bound to exercise the

jurisdiction within the confines of the order of remand. In the absence

of such restrictive or limited remand, generally, the Court to which the

matter is remanded would be empowered to decide the said matter on

its own merits and in accordance with law, albeit having due regard to

the observations in the order of remand.

17.   A useful reference, in this context, can be made to a judgment of

the Supreme Court in the case of United Bank of India, Calcutta V.

Abhijit Tea Co. Pvt. Ltd. & ors. 3, wherein the Supreme Court considered

the effect of an order of remand passed by the Division Bench of the

Calcutta High Court setting aside the decree passed by the Single Judge,

in the context of the pendency of the said suit for the purpose of its

transfer to the Debt Recovery Tribunal upon coming into force of

“Recovery of Debts Due to Banks and Financial Institutions Act, 1993”,

in the State of West Bengal.

18.   The Supreme Court observed inter alia as under:-

             “16. But, it is now well settled that an order of remand by
             the appellate Court to the trial Court which had disposed of
             the suit revives the suit in full except as to matters, if any
             decided finally by the appellate Court. Once the suit is
             revived, it must, in the eye of the law, be deemed to be
             pending – from the beginning when it was instituted. The
             judgment disposing of the suit passed by the single Judge
             which is set aside gets effaced altogether and the continuity of
             the suit in the trial Court is restored, as a matter of law. The

3     AIR 2000 SC 2957
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              suit cannot be treated as one freshly instituted on the date of
              the remand order. Otherwise serious questions as to limitation
              would arise. In fact, if any evidence was recorded before its
              earlier disposal, it would be evidence in the remanded suit
              and if any interlocutory orders were passed earlier, they would
              revive. In the case of a remand, it is as if the suit was never
              disposed of (subject to any adjudication which has becomes
              final, in the appellate judgment). The position could have
              been different if the appeal was disposed of once and for all
              and the suit was not remanded.”


19.   The Supreme Court has enunciated that, an order of remand by

the appellate court to the trial Court, which had disposed of the suit,

revives the suit in full, except as to matters finally decided by the

Appellate Court. The judgment passed by the trial Court which was set

aside by the Appellate Court (while remanding the matter) gets effaced

altogether and the continuity of the suit in the trial Court is restored, as

a matter of law. In the case of a remand, it is as if the suit was never

disposed of by the trial Court, subject to any adjudication which has

become final by the Appellate Court judgment.

20.   In the case of Rattanindia Power Limited vs. Maharashtra State

Electricity Distribution Company Ltd. & anr.4, the Supreme Court

postulated the legal position as to the consequence of remand, as

under:-

            “40.    ……
            Ordinarily, when a matter is remanded the lis is alive, unless
            directed otherwise. Therefore, the lis has to be decided in

4     2025 SCC OnLine SC 2936
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            accordance with law. Rather, it is duty of a court, whether it is
            trying original proceedings or hearing an appeal, to take notice
            of the change in law affecting pending actions and to give effect
            to the same. No doubt, judicial discipline requires that
            directions of a higher court must be followed by the court
            subordinate to it. However, there may be a situation where
            following a direction may amount to violating the binding law
            laid down by a superior court or the Apex Court. In such a
            situation, where the lis is alive, the subordinate court or
            adjudicating body will have to apply and follow the law which
            holds the field on the day it decides the matter.
            41.    In our view, when a Court or Appellate Tribunal
            remands a matter to the subordinate court, or adjudicating
            body, for a fresh decision in the light of observations contained
            therein, and while doing so refers to certain decisions, it does
            not mean that the subordinate court or adjudicating body is
            bound by those decisions and can look no further, even if, in the
            interregnum, the law has changed or developed. We must not
            be understood as saying that such a direction has to be ignored.
            Rather, such a direction must be given due consideration unless
            the law on the subject, which is binding on the court or
            adjudicating body, requires otherwise.
            42.    For example, the law declared by this Court is binding
            on all courts within the territory of India. However, if such
            declaration comes later i.e., after the remand order, could it be
            said that it would not be followed because of certain general
            observations in the order of remand. The answer to it is an
            obvious “No”. Reason being, when the remand order does not
            itself settles an issue, the issue remanded is alive and has to be
            decided as per law applicable on the date of the decision.”
                                                          (emphasis supplied)


21.   The Supreme Court has emphasized that, ordinarily when a

matter is remanded, the lis is alive, unless directed otherwise. When the


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remand order does not itself settles an issue, the issue remanded is alive

and has to be decided as per the law applicable on the date of the

decision.

22.   A decision of a learned Single Judge of this Court in the case of

Laxman Bapu Berad Vs. Sudhakar Nanasaheb Jawale 5, also deserves to

be noted. In the said case, upon remand of the matter by the High Court

to the First Appellate Court with a direction to decide the Regular Civil

Appeal afresh as per observations made in the order disposing the writ

petition, the lower Appellate Court had, in turn, remanded the matter to

the Trial Judge after setting aside the decree passed by the Trial Judge

in the suit. When the competence of District Court to again remand the

matter to the trial Court was questioned, the learned Single Judge

pointed out the distinction between a restricted remand for a specific

purpose with specific direction and the remand of the matter to the

lower Court for deciding it afresh. The observations in Paragraph No. 5

read as under:

       “5. There cannot be any dispute on the proposition that when a
       remand is a restricted remand for a speci c purpose with
       speci c directions, the Court to which the matter is remanded
       has jurisdiction only to comply those directions and it cannot
       reopen the whole case. Therefore when the Appellate Court
        nds that no proper opportunity to cross-examine or to call a
       particular witness is given or when the judgment does not
       decide some issue and gives directions to give further
       opportunity of the cross-examination or of calling such witness


5     1998 (2) Bom. CR 259
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      or directs the decision to the points left and speci es that
      remand is for that purpose only it would not be open for the
      Court to which the matter is remanded to open the whole case
      as if it is a de-novo trial. But when the remand is not a
      restricted remand and the matter is remanded to the lower
      Court for deciding it afresh on all contentions raised by the
      parties considering the relevant merits of those contentions,
      the matter is wide open before the lower Court and the lower
      Court shall have all the powers which it can exercise as if the
      matter has not gone to the superior Court subject to
      observations of superior Court. If such a remand is directed by
      the second Appellate Court or by the High Court in exercise of
      its jurisdiction under Article 227 of the Constitution of India,
      on remand of such matter before the lower Appellate Court,
      the lower Appellate Court has all the options open including,
      in turn, remanding the matter to the trial Court if it thinks that
      such a course is necessary in the ends of justice.”
                                                     (emphasis supplied)


23.   Applying these principles to the facts of the case at hand, it

deserves to be noted that, the matter before the learned Magistrate was

in the realm of the proceedings under Chapter XV of the Code and by

the order dated 05th August, 1997, this Court while setting aside the

order of investigation under Section 156(3) of the Code directed the

learned Magistrate to follow the procedure under the Code, especially

Section 202 of the Code. The course to be adopted by the learned

Magistrate after the remand of the complaint and completion of inquiry

envisaged by Section 202 of the Code was not foreclosed by the said

order. The learned Magistrate could have dismissed the complaint




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under Section 203 of the Code or issued the process under Section 204

of the Code.

24.   From the perusal of the aforeextracted order, it appears that this

Court had explicitly set aside the order directing investigation under

Section 156(3) of the Code and remanded the matter back to follow the

procedure under the Code, after taking cognizance of the matter under

Section 202 of the Code of Criminal Procedure, 1973.          On a plain

reading of the observations and the operative directions, it becomes

evidently clear that, the order of remand was not so restrictive in nature

as was construed by the learned Additional Sessions Judge. If this court

were to uphold the order of learned Magistrate declining to issue the

process under Section 204 of the Code, it would have been superfluous

for this Court to remand the matter back to the learned Magistrate.

25.   The view of the learned Additional Sessions Judge that, since the

order declining issue of process under Section 204 of the Code was not

assailed by the petitioner-complainant, it had attained finality, does not

appear to be correct, as the order of remand implied that, the said

decision not to issue process under Section 204 of the Code at that stage

[in view of the directions for further investigation under Section 156(3)

of the Code] was also interfered with by this Court. The order passed by

the learned Magistrate could not have been read in a disjunctive

manner. Process was declined under Section 204 of the Code, at that


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stage, as the learned Magistrate considered it appropriate to have

further investigation by police.

26.   For the foregoing reasons, the impugned orders passed by the

learned Additional Sessions Judge, do not appear to be in consonance

with the law. Since the learned Additional Sessions Judge did not

examine the merits of the matter and dismissed the complaint by

completely misconstruing the order passed by this Court in Writ Petition

No. 620/2017, there is no other go but to quash and set aside the

impugned orders and restore the Revision Applications back to the

Court of Session for a fresh decision in accordance with law.

27.   Thus, the following order:-

                                   ::ORDER::

              i)   The Writ Petition stands allowed.

              ii) The impugned orders dated 06th January, 2024,

              in Criminal Revision Application Nos. 90/2023 and

              95/2023 stand quashed and set aside.

              iii) The    Criminal   Revision    Applications    stand

              restored to the file of Court of Session, Malegaon,

              Nashik for afresh decision on their own merits and in

              accordance with law.

              iv) It is clarified that, this Court has not entered into

              the merits of the matter in regard to the issue of


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              process against Accused Nos. 1 to 4 and the dismissal

              of the complaint qua Accused Nos. 5 and 6.

              v)   The    learned   Additional    Sessions    Judge   is

              requested    to   hear    and    decide   the    Revision

              Applications as expeditiously as possible.

              vi) Rule made absolute in the aforesaid terms.




                                               [N. J. JAMADAR, J.]




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