1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.38 OF 2009 Ajay Kashinath Kulkarni Petitioner versus State of Maharashtra and another Respondents C.G.Patil for the petitioner. A.B.Borkar for respondent no.2. H.J.Dedhia, APP for the State. CORAM : A.S.OKA, J. DATE : 15th July 2009 PC :- 1. Heard learned counsel for the petitioner and the learned counsel for the second respondent. Considering the controversy involved, the petition is taken-up for final disposal at the admission stage. The petitioner has been arraigned as an accused in a private complaint filed by the second respondent alleging commission of offence under sections 468, 469, 471, 474 and 420 of the Indian Penal Code. After recording the verification statement of the second respondent the learned Magistrate on 8th August 2002 issued process by recording that he has gone through the complaint and verification statement. On the same day he passed another order which is on page 21 of this petition. The said order reads thus :- 2 "ORDER Today process is issued against accused u/ss.468, 469, 471, 474 and 420 of I.P.C. This case is to be sent to Murgud P.S. for investigation u/s.156(3) of Cr.P.C. The P.S.O. for Murgud P.S. is directed to send his report on or before 19/8/02. It is further directed the P.S.O. to take possession of seized letters sent to Yuvraj Patil and to accused i.e. Ajay Kashinath Kulkarni. Report should be produced before this Court on or before 19/8/02." 2. The petitioner filed a writ petition for challenging the said order. The writ petition was disposed of by this Court by permitting the petitioner to file a criminal revision application before the Sessions Court. The revision application has been dismissed. Therefore, the present petition has been filed for challenging the said order. 3. The submission of the learned counsel for the petitioner is that the impugned order is illegal inasmuch as by the same order the learned Judge could not have passed an order for investigation under section 156(3) of the Code of Criminal Procedure, 1973 ("Code" for short) and issued process. It is submitted that after recording the verification statement, the learned Magistrate had no jurisdiction to pass an order under section 156(3) of the said Code. The learned counsel for the second respondent opposed the petition. He submitted that apart from the direction under section 156(3) of the said Code, the learned Magistrate has passed a separate order of issue of process. He submitted that even assuming that the direction under section 156(3) of the said Code is illegal, the order of issue of process cannot be disturbed. 3 4. I have carefully considered the submissions. After recording the verification statement under section 200 of the said Code, the learned Magistrate could not have issued direction under section 156(3)of the said Code. Therefore, in view of the settled law, that part of the impugned order is illegal. It is true that the learned Magistrate issued process by a separate order passed on the same day i.e. on 8th August 2002. But another order passed on the same day shows non application of mind inasmuch as the learned Judge has noted that the process is issued against the accused and at the same time he has directed investigation by the officer attached to the concerned Police Station. The order indicates that the learned Judge was not sure as to which course should be adopted on the basis of the private complaint filed by the second respondent. Thus, there appears to be non application of mind on the part of learned Magistrate. Therefore, the only course open to this Court is to set aside the orders passed on 8th August 2002 and to direct the learned Magistrate to apply his mind and to pass appropriate orders in accordance with law. It is obvious that the learned Magistrate will not be influenced by the order of this Court setting aside the order of issue of process and the case made out in the complaint as well as in the verification statement will be considered on its own merits. 5. Hence, I pass following order :- (a) The impugned order dated 8th August 2002 of issuing process and 4 of issuing a direction under section 156(3) of the said Code is quashed and set aside; (b) The learned Magistrate will consider the complaint as well as verification statement of the second respondent. The learned Magistrate will thereafter pass appropriate orders in accordance with law in the light of the observations made by this Court; (c) The writ petition is partly allowed in the above terms; (d) It is made clear that all questions on merits of the complaint are expressly kept open; (e) It is obvious that all consequential proceedings on the basis of order under section 156(3) of the said Code are quashed and set aside as the same are rendered inoperative. (A.S.OKA, J.)