1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3457 of 2009 ( Yashpal s/o Natthuram Janwani and others ..vs.. State of Maharashtra and another ) --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. G.G. Mishra, Counsel for the applicant. Mr. Sanjay Doifode, APP for the non-applicant No.1/State. CORAM:- S. S. SHINDE, J. DATED :- 13 th November,2009 1. This application is filed praying for quashing and setting aside the order dated 22-7-2008 passed by the Judicial Magistrate First Class, Nandura in Criminal Complaint No.26/2008 and the F.I.R. bearing No. M 1/2009 dated 25-3-2009 registered by the non-applicant No.1/the Police Station Officer, Nandura for offence punishable under Sections 120(b), 403, 408, 409, 420, 468, 477(A) r/w Section 34 of the Indian Penal Code and under Sections 15, 16, 17, 18, 19 and 20 of the Indian Contract Act, 1872. 2. The learned Counsel appearing for the applicant submits that though the Magistrate has ordered the investigation under Section 156(3) of the Criminal 2 Procedure Code, without filing report of investigation and without any further direction by the Magistrate to the police, the offence is registered. Therefore, the learned Counsel for the applicant submits that when the Magistrate ordered the investigation under Section 156(3) of the Criminal Procedure Code, without filing report of investigation before the said Magistrate and in turn unless there is a direction by the Magistrate to register the offence, it was not permissible for the concerned Police Officer to formally register the offence and start the investigation. 3. The learned APP invited my attention to the reported Judgments of the Hon’ble Apex Court in case of Madhu Bala v. Suresh Kumar and others reported in (1997) 8 SCC 476; Suresh Chand Jain v. State of Madhya Pradesh and another reported in AIR 2001 SC 571 and submitted that the police even in the absence of a direction to register a case by the Magistrate the police is bound to formally register a case and then investigate into the same in pursuance of direction under Section 156(3) of 3 the Criminal Procedure Code. Therefore, the learned APP submits that the application filed by the present applicant is prematured and as on today the applicants are not treated as accused. 4. The learned APP further invited my attention to the Judgment of this Court in the case of Pavankumar Bhurmalji Ostwal and others v. State of Maharashtra and another reported in 2008(3) Mh.L.J. (Cri.) 719, and submitted that this Court in the said judgment held that - “The applicants are entitled to file application under Section 482 only after process is issued”. 5. After hearing learned Counsel appearing for the applicant and learned APP for the State, instead of going into the merits and demerits of the matter, the present application deserves to be rejected on two grounds. Firstly, the Magistrate has only issued direction under Section 156(3) of Criminal Procedure Code and in pursuant to that the F.I.R. is registered by the Police and yet the 4 Magistrate has to apply his mind and issue the process. In the instant case, no process is issued. Therefore, the application under Section 482 of the Criminal Procedure Code, at this state, is not maintainable. Secondly, it was possible for the concerned Police Officer to register formally the F.I.R. in pursuance to the direction of investigation under Section 156 (3) of the Criminal Procedure Code. It is not necessary that there should be specific direction to register the F.I.R. The Hon’ble Apex Court in case of Madhu Bala v. Suresh Kumar and others cited Supra has clearly held that - “once the case is sent for investigation under Section 156(3) of Criminal Procedure Code by the Magistrate, the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a “police report” in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(1)(b).” It is further observed in the said judgment that - 5 “Whenever a Magistrate directs an investigation on a “complaint” the police has to register a cognizable case on that complaint treating the same as the F.I.R. and comply with the requirements of the above Rules. Therefore, it cannot be said that the direction of a Magistrate asking the police to “register a case” makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable “case” and the Rules framed under the Indian Police Act, 1861 it (the police) is duty-bound to formally register a case and then investigate into the same.” 6. Therefore, what follows from the above cited judgments is that, before issuing the process it is not permissible to file the application under Section 482 of the Criminal Procedure Code as held by this Court in case of Pavankumar Bhurmalji Ostwal and others v. State of Maharashtra and another cited Supra and secondly it is 6 not necessary that there should be specific direction by the Magistrate to register F.I.R. once case is sent for investigation under sub-section (3) of Section 156 of Criminal Procedure Code to the concerned police. Therefore, at this state, the application filed by the applicant is prematured and same is rejected without adjudication on merits of the matter. JUDGE adgokar