Bombay High Court
Hasan Mohammad Issak Maniyar vs Harun Gulab Maniyar on 7 January, 2014
Author: Revati Mohie Dere
Bench: S. C. Dharmadhikari, Revati Mohite Dere
1 cri.wp.23.13.doc
SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.23 OF 2013
1. Hasan Mohammad Issak Maniyar,
Age-47 years, Occu - Agricultural
and Business, R/o. at Shashtri Chowk,
Main Road, Pimpalgaon, Tal. Niphad,
Dist. Nashik
2. Husain Mohammad Issak Maniyar,
Age - 45 years, Occu - Agricultural
and Business, R/o. at Shashtri Chowk,
Main Road, Pimpalgaon, Tal. Niphad,
Dist. Nashik
3. Ramiz Hasan Maniyar,
Age - 22 years, Occu - Education
R/o. at Shashtri Chowk,
Main Road, Pimpalgaon, Tal. Niphad,
Dist. Nashik
4. Ahatesham Hasan Maniyar,
Age - 19 years, Occu - Education,
R/o. at Shashtri Chowk,
Main Road, Pimpalgaon, Tal. Niphad,
Dist. Nashik ...Petitioners
Versus
1. Harun Gulab Maniyar,
Age - 47 years, Occu - Business,
R/o. Umbarkhed Road, Pimpalgaon,
Tal. Niphad, Dist. Nashik
2. State of Maharashtra,
Copy for Respondent No.2 to be served
on the Ld. P.P., High Court Writ Cell,
Bombay ...Respondents
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Mr. S. V. Kotwal i/b Mr. A. B. Tajane for Petitioners
Mr. S. M. Kamble for Respondent No.1
Ms. Usha Kejriwal, A.P.P. for Respondent-State
......
CORAM: S. C. DHARMADHIKARI AND
REVATI MOHITE DERE, JJ.
RESERVED ON : DECEMBER 6, 2013
PRONOUNCED ON : JANUARY 7, 2014
JUDGMENT (Per Revati Mohie Dere, J. ) :
1. Rule was granted in this petition on 4 th January, 2013 and by way of an ad-interim relief, the trial of the petitioners was not to proceed until further orders. As Rule on interim relief was made returnable in March, 2013, and considering the narrow controversy involved in the petition, we have taken up this petition itself for final disposal with the consent of the parties.
2. Heard learned Counsel Shri S. V. Kotwal for the petitioners, Mr. S. M. Kamble for respondent No.1 and Ms. Usha Kejriwal, A.P.P. for the State.
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3. This petition preferred under Articles 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `the Code'), takes exception to the order dated 24th April, 2012 passed by the Judicial Magistrate, First Class, Pimpalgaon (B), Taluka Niphad, District - Nashik, directing investigation under Section 156(3) of the Code, after recording verification of the complainant, in Criminal M.A. No. 79 of 2012.
4. Brief facts are : The petitioner No.1 had lodged a complaint i.e. N.C. No.136/2011 against Bashir Dagumiya Maniyar, the petitioner's Uncle on 13th May, 2011 alleging offences punishable under Sections 323, 504 and 506 of the Indian Penal Code. Pursuant to the said complaint, it is alleged that a chapter case came to be registered, being Chapter Case No.65/2011 with regard to the incident of assault dated 13 th May, 2011. The petitioner No.1 is alleged to have sustained injuries in the said incident. It is alleged that thereafter, a compromise came to be entered into by and between the parties in the police station, which was recorded and signed by one Harun Maniyar as a witness. According to the petitioners, the SQ Pathan 3/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 4 cri.wp.23.13.doc compromise records compromise regarding a shop, agricultural land and house.
On 22nd July, 2011, the petitioner No.1 Hasan Mohammed Maniyar appears to have addressed a complaint to the Commissioner of Police, Nashik; the Director General of Police, Mumbai, and the Tahsildar, Niphad against Bashir Dagumiya Maniyar stating therein, that his father's property was illegally usurped by Bashir Maniyar. It was stated that the family of the petitioner No.1 was attacked on 13th May, 2011. It was also stated that the i.e. petitioner No.1 was injured in the said incident and that when he went to the Police Station for lodging a complaint, the complaint was not registered by the police and that he was not immediately sent for his medical check-up. It was alleged that the police refused to register his complaint and though the complaint disclosed the commission of a cognizable offence, the police recorded his complaint as a non-cognizable complaint.
The petitioners have further alleged that on 18 th July, 2011, Tanveer, Samir and Jamir, the sons of Bashir Maniyar, threatened the SQ Pathan 4/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 5 cri.wp.23.13.doc petitioner No.1 that he would be killed. The petitioner No.1 was also allegedly threatened to withdraw the civil case filed by him, wherein, he had claimed a share in the Dagumiya Tower. It is stated that after threatening, they assaulted him and fled away. It is alleged by the petitioners that despite requesting the police to register an FIR against the persons responsible for the same, the police failed to do so.
On 30th November, 2011, the petitioner No.1 lodged a complaint with the Pimpalgaon Police Station against Harun, Bashir, Tanveer Bashir and Mohsin Harun with regard to an assault on him on account of a property dispute. According to petitioners, the said complaint was registered as a non-cognizable case, vide NC No. 386/2011 for the offences punishable under Sections 323, 504 and 506 of the Indian Penal Code.
On 5th April, 2012, at about 12.30 in the noon, an incident of assault took place. It appears, with regard to the said incident of assault, both the sides i.e. petitioners and the respondent No.1 approached the Pimpalgaon Police Station, Taluka Niphad, Nashik, where the police sent SQ Pathan 5/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 6 cri.wp.23.13.doc them for their medical check-up after giving them yadis.
According to the petitioners, on 5 th April, 2012, the police gave medical yadis to the petitioner No.3 Ramiz Hasan Maniyar, as well as the Respondent No.1 i.e. complainant Hasan Maniyar, his son and Tanveer for being examined in the Hospital.
On 8th April, 2012, the petitioner No.3 is stated to have made a complaint with regard to the incident of assault, dated 5 th April, 2012 to the Sub-Inspector of Police, Pimpalgaon, Taluka Niphad, District Nashik. It was stated in the said complaint, that Harun, Alim, Mohsin, Bashir and Tanveer had threatened his father i.e. Hasan Maniyar with regard to handing over immediate possession of the gala. It is alleged that his father was also threatened of dire consequences. It is further alleged that there was an altercation between them, as a result of which Bashir, in a fit of rage, pulled out his crutch and assaulted petitioner No.3 on his head. It was alleged that Alim also assaulted the petitioner No.3 on his head. It was stated that after the petitioner No.3 fell down, he came to be assaulted again by Harun and Tanveer. It was alleged that Mohsin and Alim also assaulted SQ Pathan 6/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 7 cri.wp.23.13.doc him by kick blows and that one Bashir provoked the said persons. Pursuant to the said assault, petitioner No.3 is stated to have gone to the Pimpalgaon Police Station with the help of petitioner No.1, obtained a yadi and taken to the Government Hospital for treatment. It is further stated that as the petitioner No.3 apprehended danger to his life and was taking treatment in the hospital, he sent his father to the concerned police station for lodging a complaint. It is stated that the police were requested to register a complaint under Section 324, 325, 506(ii) r/w 34 of the Indian Penal Code as against the concerned accused persons.
It is stated by the petitioners that on 17th April, 2012, the petitioner No.3 again sent a reminder for taking action as per his complaint dated 8th April, 2012. It is stated that the police took his complaint but refused to register the complaint. They also did not accept the blood stained clothes. It is further stated that as the police refused to register the complaint, the petitioner No.3 sent an application vide registered post to the police station for accepting his blood stained clothes and for taking action as per his complaint dated 8th April, 2012.
SQ Pathan 7/22 ::: Downloaded on - 27/01/2014 23:07:10 :::8 cri.wp.23.13.doc According to the petitioners, due to the inaction of the police on the written complaint of petitioner No.3, the petitioner No.3 was constrained to file a private complaint on 18th April, 2012, in the Court of the Judicial Magistrate, First Class, Pimpalgaon, Nashik. It is stated that the Judicial Magistrate, First Class, Pimpalgaon, Taluka Niphad, District Nashik recorded his verification on 19th April, 2012 and passed an order issuing process as against five accused persons i.e. Harun, Bashir, Alim, Mohsin and Tanveer in RCC No. 49/2012 for the offences punishable under Sections 324, 325, 506(ii) r/w 34 of the Indian Penal Code. It is also stated that the blood stained shirt of the petitioner No.3 was taken into custody by the Magistrate on 19th April, 2012.
On 24th April, 2012, Harun Gulab Maniyar i.e. respondent No.1 herein also filed a private complaint, being Criminal M.A. No. 79/2012 in the same Court i.e. in the Court of the Judicial Magistrate, First Class, Pimpalgaon, Taluka Niphad, District Nashik, alleging assault by all the petitioners. It is alleged in the said complaint that all the petitioners abused the complainant and assaulted him, his son and Tanveer with tiger claws SQ Pathan 8/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 9 cri.wp.23.13.doc and iron rods. It is alleged that in the said assault, petitioner No.3 assaulted Tanveer Bashir, as a result of which, Tanveer sustained a fracture of his finger. The Magistrate recorded the verification statement of the complainant i.e. respondent No.1 on 24th April, 2012 and thereafter an order appears to have been passed by the Magistrate, directing investigation under Section 156 (3) of the Code. Pursuant to the order dated 24 th April, 2012 passed by the learned Magistrate in Criminal M.A. No.79/2012, an FIR came to be registered vide C.R. No. 55/2012 with the Pimpalgaon Baswant Police Station and on completion of investigation, charge-sheet appears to have been filed. Being aggrieved by the said order dated 24 th April, 2012, passed by the learned Magistrate in Criminal M.A. No.79/2012, the petitioners have filed this petition questioning the legality of the said order dated 24th April, 2012, directing investigation under Section 156(3) of Code, in Criminal M. A. No. 79/2012.
5. Mr. Kotwal, learned Counsel for the petitioners urged that the Magistrate once having taken cognizance of the offence under Section 190(1)(a) of the Code, ought not to have reverted back to the pre-cognizance stage by issuing an order under Section 156(3) of the Code.
SQ Pathan 9/22 ::: Downloaded on - 27/01/2014 23:07:10 :::10 cri.wp.23.13.doc In support of his contention, he relied on a Judgment of the Apex Court in the case of Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy & Ors.1. He further contended that the Magistrate was not competent to take cognizance of Criminal M.A. No. 79/2012, more particularly, when the same Magistrate was seized of a private complaint filed by the petitioners with regard to the same offence, which is R.C.C. No. 49/12.
6. The learned Counsel Mr. Kamble appearing for respondent No.1 - original complainant and the learned A.P.P. contended that the petition raises disputed questions of fact which cannot be gone into in writ jurisdiction and therefore contended that the petition be dismissed.
7. We have given our anxious consideration to the submissions advanced by the parties. We have gone through the petition and annexures thereto. The principal ground which is raised in the present petition is whether the Judicial Magistrate, First Class, Pimpalgaon (B), Taluka Niphad, District - Nashik, was justified in passing the impugned order 1 (1976) 3 SCC 252 SQ Pathan 10/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 11 cri.wp.23.13.doc dated 24th April, 2012, directing investigation under Section 156(3) of the Code after recording the verification statement of the complainant i.e. respondent No.1. In other words, whether the Magistrate after having taken cognizance of the offence under Section 190(1)(a) of Code can revert back to the pre-cognizance stage and pass an order under Section 156(3) of the Code. Before we deal with the submissions advanced by the learned Counsel for the petitioners, it would be necessary to reproduce the relevant Sections, being Sections 156, 190, 200, 202 and 203 of the ig Code to appreciate the controversy ;
"S. 156. Police officer's power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
"S. 190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class SQ Pathan 11/22 ::: Downloaded on - 27/01/2014 23:07:10 :::
12 cri.wp.23.13.doc specially empowered in this behalf under Sub-Section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) ....................."
"S. 200 - Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
"S. 202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made SQ Pathan 12/22 ::: Downloaded on - 27/01/2014 23:07:10 :::
13 cri.wp.23.13.doc over to him under Section 192, may, if he thinks fit and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
8. A perusal of the aforesaid sections clearly reveal that when the complaint is filed before the Magistrate, the Magistrate has three options;
Firstly, he can peruse the complaint and if satisfied that there are sufficient SQ Pathan 13/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 14 cri.wp.23.13.doc grounds for proceeding he can straightaway issue process to the accused but before he does so, he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses; secondly, he may postpone the issue of process against the accused and can enquire into the case himself and thirdly, he can postpone the issue of process and direct an enquiry by any other person or an investigation by the police under Section 156(3) of the Code.
9. It is pertinent to note that Section 156(3) of the Code which comes under Chapter XII of the Code contains provisions relating to information to the police and their powers to investigate; whereas Chapter XIV which contains Section 200 onwards deals with the provisions relating to the steps which the Magistrate has to adopt while and after taking cognizance of any offence on a complaint.
10. In Devarapalli Lakshminarayana Reddy & Ors (supra), a Bench of three Hon'ble Judges have explained the powers of the Magistrate under Section 156(3) and Sections 200 and 202 of the Code and has concluded as under :-
SQ Pathan 14/22 ::: Downloaded on - 27/01/2014 23:07:10 :::15 cri.wp.23.13.doc "13. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under s. 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
14. This raises the incidental question: What is meant by "taking cognizance of an offence`' by a Magistrate within the contemplation of s. 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The way in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence.
15. ..................................
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17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while s. 202 is in Chapter XV which bears the heading "Of complaints to Magistrates". The power It order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The two operate in distinct spheres at different stages.
The first is exercisable at the pre cognizance stage, the second at the post- cognizance stage when the Magistrate is in seisin of the case. 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under s. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173. On the other hand s. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under s. 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ". Thus the object of an investigation under s. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him."
11. In the present case, considering the scheme of the Code, we find that the learned Magistrate once having taken cognizance of the complaint under Section 190(1)(a) i.e having recorded the verification statement of the complainant, could not have reverted back to the pre-cognizance stage, thereby directing investigation under Section 156(3) of the Code. The said order dated 24th April, 2012 passed by the Magistrate is clearly contrary to the mandate of law and the Judgments of the Apex Court.
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12. This settled legal position has been affirmed by the Apex Court in several subsequent decisions. The Courts are ad idem on the question that the powers under Section 156(3) can be invoked by a Magistrate at the pre-cognizance stage, and that once verification of the complainant is recorded, the Magistrate is precluded from reverting back to the pre-cognizance stage.
13. In Madhao and Another v/s. State of Maharashtra & Anr. 2, in paragraph 17, the Apex Court observed as under :-
"17. In CREF Finance Limited v/s. Shree Shanti Homes (P) Ltd.- (2005) 7 SCC 467 while considering the power of a magistrate taking cognizance of the offence, this Court held : (SCC p.471, para 10 ) "10..... Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining he complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate 2 (2013) 5 SCC 615 SQ Pathan 17/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 18 cri.wp.23.13.doc to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure."
It is clear that any Judicial Magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein."
14. What emerges from the aforesaid cases therefore is, that any Judicial Magistrate, before taking cognizance of the offence, may either enquire into the case himself or direct an enquiry by any other person or direct an investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. Infact, when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint do not disclose the commission of an offence. He has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and that forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Court from being wasted by enquiring into a matter, he will be justified in directing investigation under Section 156(3). Thus, when a Magistrate receives a complaint regarding the commission of cognizable offence, the power under Section 156(3) may be invoked by the Magistrate before he SQ Pathan 18/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 19 cri.wp.23.13.doc takes cognizance of the offence under Section 190(1)(a) of the Code.
However, once he takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is precluded from reverting back to the pre-cognizance stage.
15. Keeping the aforesaid provisions and judicial pronouncements thereon in mind, if we test the same in the facts of the present case, we find that the Magistrate once having recorded the verification statement of the complainant, could not have reverted back to the pre-cognizance stage and passed an order directing investigation under Section 156(3) of the Code.
We find that the Magistrate has exceeded his powers by passing the impugned order which is clearly contrary to the scheme of the Code. The facts of the present case show that the complaint came to be filed on 24 th April, 2010 on which date the verification statement of the complainant appears to have been recorded. It further appears that on 24th April, 2012 itself, the Magistrate on the very same complaint has passed an order;
"Perused the statement of verification. Perused the documents and material available on record." Call police report of investigation under Section 156(3) of the Code of Criminal Procedure R/0/10.5.2012".SQ Pathan 19/22 ::: Downloaded on - 27/01/2014 23:07:10 :::
20 cri.wp.23.13.doc On 25th April, 2012, the Magistrate on the said complaint has passed an order;
ORDER "Put up for verification."
16. It is clearly evident from the aforesaid facts, that the Magistrate after having recorded the verification statement of the complainant ought to have passed an order as contemplated under Section 200 of the Code, instead of directing an investigation under Section 156(3) of the Code, thereby reverting back to the pre-cognizance stage, which was clearly impermissible in law.
17. With regard to the submission of the learned Counsel for the petitioners, that the Magistrate ought not to have taken cognizance of the complaint, being Criminal M.A. No. 79/2012, as the very same Magistrate had recorded the verification of the petitioner No.3, in the complaint filed by him with respect to the same incident of assault and had issued process in the said case, we are of the opinion that this cannot be gone into in writ jurisdiction and it is for the Magistrate to decide the complaint filed by the SQ Pathan 20/22 ::: Downloaded on - 27/01/2014 23:07:10 ::: 21 cri.wp.23.13.doc respondent No.1, being Criminal M.A. No. 79/2012, in accordance with law.
We do not express any view on the said submission advanced by the learned Counsel for the petitioners.
18. In view of the aforesaid, we are of the opinion that the impugned order dated 24th April, 2012 passed by the learned Magistrate directing investigation under Section 156(3) of the Code ought to be quashed and set-aside and the Magistrate ought to proceed from the stage after recording verification of the complainant in accordance with law. We may observe that we have not expressed any opinion either way on the merits of the case. Accordingly we pass the following order :-
ORDER
1. The impugned order dated 24th April, 2012 directing investigation under Section 156(3) of Code is quashed and set-aside and the learned Judicial Magistrate, First Class, Pimpalgaon (B), Taluka Niphad, District - Nashik, is directed to proceed further from the stage after recording verification of the complainant in accordance with law.SQ Pathan 21/22 ::: Downloaded on - 27/01/2014 23:07:10 :::
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2. In view of the above, FIR being C.R. No. 55/2012 registered with the Pimpalgaon Baswant Police Station, Taluka Niphad, District Nashik, and all investigations pursuant to the same are also quashed and set-aside. However, we clarify that quashing of the F.I.R. is incidental to the setting aside of the order dated 24 th April, 2012. This shall not preclude the learned Magistrate from proceeding with the criminal case in accordance with law.
3. Rule is made absolute in aforesaid terms.
4. No order as to costs.
(REVATI MOHITE DERE, J.) (S. C. DHARMADHIKARI, J.) SQ Pathan 22/22 ::: Downloaded on - 27/01/2014 23:07:10 :::