WP.793-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 793 OF 2010 AND CRIMINAL WRIT PETITION No. 794 OF 2010 AND CRIMINAL WRIT PETITION No. 797 OF 2010 AND CRIMINAL WRIT PETITION No. 798 OF 2010 AND CRIMINAL WRIT PETITION No. 799 OF 2010 Maharashtra State Electricity Co. Ltd. ...Petitioners Vs. The State of Maharashtra & Ors. ...Respondents *** Mr. Subir Kumar i/b M/s. Lex Global Legal Consultancy, for the Petitioners. Mr. P. S. Hingorani, APP for the Respondent-State. Mr. A. P. Mundargi, Sr. counsel with Ms. Swati Sugvekar i/b Legasis Partners for Respondent No.2. Respondent No.3 in person. *** CORAM: V. M. KANADE J. DATE : AUGUST 24, 2010 P.C. 1. Heard the learned counsel for the petitioners and the learned WP.793-10 - 2 - senior counsel for respondent No.2. By these petitions which are filed under Art. 227 of the Constitution of India and under S. 482 of Cr.P.C., the petitioners have challenged the order passed by the learned Magistrate dated 2nd November, 2009. By the said order, the learned J.M.F.C. Junnar was pleased to accept the order “C” summary report which was filed by the police. 2. The learned counsel appearing on behalf of the petitioners submits that the learned Magistrate has not followed the procedure laid down under Cr.P.C. and various directions given by the Apex Court and this Court before passing the impugned order. He further submitted that it was incumbent on the learned Magistrate to issue notice to the complainant and he should have given an opportunity either to make submission on the “C” summary report by filing a protest petition or allowing his counsel to make a submission on the said report. He invited my attention to the judgment of the Apex Court in the case of – Union Public Service Commission, Appellant Vs. S Papaiah & Ors., Respondents [AIR 1997 Supreme Court 3876]. He further submitted that secondly no reasons have been assigned by the learned Magistrate while accepting the “C” report, filed by the police. WP.793-10 - 3 - 3. The learned senior counsel appearing for respondent No.2 submits that some petitions were filed by respondent No.1 at the Aurangabad Bench of this High Court wherein certain directions were given to the police to seek the permission of the Court before filing the charge-sheet. He further submits that about 51 complaints have been filed by the complainant at various places in Maharashtra. It is further submitted that respondent No.2 may be permitted to place affidavit-in- reply, filed by them in these cases for perusal of the same by the learned Magistrate. The learned senior counsel appearing on behalf of respondent No.2 submits that notice has been issued by the police but said notice has not been filed. He therefore, submits that the petitioner must have been served with copy of “C” summary report. This submission cannot be accepted since in view of the judgment of the Apex Court, notice has to be issued by the learned Magistrate and not by the police. 4. I have also heard respondent No.3 who is appearing in person. He has stated that he is no longer working with respondent No.2 since May 2009. He further submits that no averments are made against him in the complaint. WP.793-10 - 4 - 5. Having heard the learned counsel appearing for the parties at length, it appears that the learned Magistrate has committed an error of law which is apparent on the face of the record. It is settled position that before accepting the report by the Magistrate, he should have issued notice to the complainant and given an opportunity of being heard. In the present case, the learned Magistrate has neither issued any such notice nor has given any reason for accepting the “C” summary report filed by the police. The Apex Court in the case of – Bhagwant Singh, Petitioner Vs. Commissioner of Police & Anr., Respondents [AIR 1985 Supreme Court 1285] has in terms has made this position clear in paragraph 4 and 5 of the judgment. This being the well settled legal position, the learned Magistrate has thus, erred in passing the aforesaid impugned order. The impugned order therefore, will have to be set aside. The writ petitions are therefore, allowed. The matters are remanded back to the learned Magistrate. The learned Magistrate shall issue notice to the complainant and give him an opportunity of filing his objection to the “C” summary report or file a separate protest petition and thereafter pass reasoned order, in accordance with law. 6. The submission of the learned Sr. Counsel appearing on WP.793-10 - 5 - behalf of respondent No.2, that respondent No.2 may be allowed to file his affidavit before the learned Magistrate, cannot be accepted since at this stage, he has no locus to appear before the Magistrate. Respondent No.3 is at liberty to take such steps as is advised. [ V. M. KANADE J.]