1 Crwp 369 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.369 OF 2009 1) Chandrakant @ Raju S/o Ramakant Navghare. Age 30 years, Occupation : Agriculture. 2) Gajanan S/o Vithalrao Navghare, Age 27 years, Occupation : Agriculture. 3) Umakant S/o Ramakant Navghare, Age 25 years, Occupation : Agriculture. 4) Panjab S/o Manikrao Navghare, Age 25 years, Occupation : Agriculture. 5) Pratap S/o Manikrao Navghare. Age 25 years, Occupation : Agriculture. 6) Sudam s/o Shamrao Navghare, Age 24 years, Occupation : Agriculture. 7) Pralhad S/o Pandurang Navghare, Age 22 years, Occupation : Agriculture 8) Laxmikant S/o Ramakant Navghare, Age 23 years, Occupation : Agriculture. 2 Crwp 369 of 2009 9) Mithun S/o Balaji Navghare, Age 21 years, Occupation Agriculture. 10) Bandu @ Trimbak S/o Limbaji Navghare, Age 33 years, Occupation : Agriculture. 11) Rama S/o Eknath Navghare, Age 21 years, Occupation : Agriculture 12) Balaji S/o Madhavrao Dhore Age 29 years, Occupation : Agriculture. 13) Shankar S/o Madhavrao Navghare Age 55 years,’ Occupation : Agriculture. All residents of At and Post Babhulgaon, Taluka Vasmat, District Hingoli. ... Petitioners. Versus 1) The State of Maharashtra Through the Director of Prosecution, Mumbai. 2) Superintendent of Police, Hingoli, District Hingoli. 3) Pralhad S/o Pandurang Dhore, Age 35 years, Occupation : Agriculture, R/o Babhulgaon, Taluka Vasmat, District Hingoli. ... Respondents. 3 Crwp 369 of 2009 -------- Shri. S.M. Godsay, Advocate for the petitioners. Shri. S.D. Kaldate, Additional Public Prosecutor, for respondents Nos.1 and 2. Shri. S.S. Rathi, Advocate, for respondent No.3. -------- CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. DATE: 10th SEPTEMBER 2009 ORAL JUDGMENT: (Per Naresh H. Patil, J.):- 1) Rule. By consent rule made returnable forthwith and taken up for final disposal. 2) A complaint was filed against the petitioners before the Judicial Magistrate, First Class, Basmatnagar which was numbered as Regular Criminal Case No.82 of 2009 on 17-4-2009. Admittedly, we do not find any verification of the complainant recorded by the Magistrate. On 17-4-2009 the Judicial Magistrate, First Class passed two separate orders. They read thus: 4 Crwp 369 of 2009 “R.C.C. No.82/09 Dt.17.4.2009 ORDER Register the case under I.P.C. Issue process for offence U/s. 326,147,166,323 against the accused. It is fixed on 23/5/09. Sd/- Judicial Magistrate F.C. Wasmat. O. Call Report U/s. 156(3) of the Cr.P.C. Sd/- J.M.F.C. Basmat 13.4.09” 3) Based on these orders admittedly First Information Report was registered against the petitioners bearing FIR No.57 of 2009 at Police Station Basmatnagar for the alleged offences mentioned in the complaint. 4) The petitioners had to rush for getting anticipatory bail and according to the learned 5 Crwp 369 of 2009 counsel Shri S.M. Godsay, the petitioners were granted bail. 5) The learned counsel Shri. Godsay submitted that the Judicial Magistrate First Class committed serious error in passing two orders of different context and nature. In case the Magistrate desires to pass orders in relation to complaint in exercise of his powers under Section 200 of the Code of Criminal Procedure then the proper mode would be to record verification of the complainant and pass appropriate orders in such situation. The Magistrate is not empowered to pass orders under section 156(3) of the Code of Criminal Procedure simultaneously. The counsel submits that, it is a misconception of law due to which prejudice is caused to the petitioner as the police have registered a crime 6) The learned counsel Shri. S.S. Rathi appearing for respondent No.3 – complainant submitted that either of these two orders could 6 Crwp 369 of 2009 be maintained, as according to the counsel, who fairly submits, both these orders of this nature could not have been passed by the Magistrate; one issuing process, and another passing order under section 156(3) of the Code of Criminal Procedure. Another limb of the argument of the learned counsel Shri. Rathi is that based on this order the police had registered First Information Report and the investigation is going on. In the process the petitioners sought for bail and they came to be released on bail too. Therefore in the submission of the counsel the error could be rectified by retaining one of the orders and set aside the order passed by the Court relating to the issuance of process. 7) We find that the Magistrate has committed error in passing both the orders; one of issuance of process and another under section 156(3) of the Code of Criminal Procedure simultaneously. Both these orders operate in different context in view of the provisions of 7 Crwp 369 of 2009 the Code of Criminal Procedure. The Magistrate was not empowered to pass both the orders which are impugned herein. 8) It is made clear that we are not adverting to the contentions raised or the allegations made in the complaint by the complainant against the petitioners herein. We are restricting our decision to the procedure adopted by the Magistrate in passing these two orders which are mutually in conflict. 9) Chapter XV of the Code of Criminal Procedure 1973 relates to the complaints to Magistrates and provisions of Sections 200 onwards prescribe the procedure on a complaint being filed before the Magistrate. Chapter XII of the Code of Criminal Procedure relates to the information to the police and their powers to investigate. Section 156(3) read thus: “156. Police officer’s power to investigate cognizable case:- 8 Crwp 369 of 2009 (1) .... (2) .... (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned” 10) The police registered the FIR No.57 of 2009 against the respondents based on the order passed by the Magistrate under section 156(3) of the Code of Criminal procedure. 11) It is, therefore, necessary for the learned Magistrate to carefully go through the complaint, peruse the provision of Chapter XV and Chapter XII of the Code of Criminal Procedure and thereafter pass appropriate orders in accordance with law. In the facts of the case we find it inappropriate to select one of the two orders and set aside either of them. Because it is the jurisdiction the Magistrate concerned to pass orders on the complaint which was filed before him. It is true that the FIR was registered on the basis of the order passed by the Magistrate. But registration of the FIR would not validate 9 Crwp 369 of 2009 and correct the error committed in passing these two orders on the same day i.e. On 17th April 2009 by the learned Magistrate. We, therefore, would remove this confusion and clear the way for the learned Magistrate to pass fresh appropriate order in accordance with law. Certainly, in the process we would require to quash the FIR No.57 of 2009 which would be consequential to the setting aside of these two orders by this Court. At the same time, we would reiterate that we are not expressing any opinion on the contentions and allegations raised in the complaint by the complainant against the respondents. It is left solely to the jurisdiction of the learned Magistrate to deal with the issue in accordance with law afresh. 12) Both the orders dated 13-4-2009 passed by the Judicial Magistrate First Class Basmatnagar; one in respect of issuance of process and another calling report under section 156(3) of the Cr.P.C. are quashed and set aside. 10 Crwp 369 of 2009 The FIR No.57 of 2009 registered at Basmat Police Station consequently is quashed and set aside. 13) The case is remitted back to the Judicial Magistrate, First Class, Basmat. The Judicial Magistrate is directed to pass appropriate order strictly in accordance with law after going through the complaint within four weeks from the date of receipt of writ of this Court. We make clear that this Court has not expressed any opinion on the contentions and allegations made in the complaint against the petitioners. 14) Rule is made absolute in the above terms. (SHRIHARI P. DAVARE, J.) (NARESH H PATIL, J.) rsl/ crwp.369.09