1 Cri.WP No.1128/2010 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1128/2010. ( Munwar Ahmed s/o Naim Ahmed and Anr. Vs. The State of Maharashtra ) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr. NV Gavare, Adv. for Petitioner/s; Mr. GR Ingole, APP for State. Mr,AD Kasliwal, Adv. h/for Mr. KU Nikam, Ad. For Resp.No.2. *** CORAM: K.U.CHANDIWAL ,J. DATE : 16 th June, 2011. 1) Heard both sides. Rule made returnable forthwith. 2) The learned JMFC, based on private complaint lodged by Smt. Shaikh Salma, directed to sent complaint for verification and consequent thereupon, the complainant – Shaikh Salma gave her verification by affidavit on oath. After assessing the situation, the learned JMFC directed investigation in terms of Section 156(3) of Cr.P.C. This exercise is questioned as to its legality. 3) Learned Counsel for the petitioner has placed reliance to the judgment of Hon’ble Apex court in the matter of Devarapalli Lakshminarayan Reddy Vs. V.Narayana Reddy, reported in 1976 AIR (SC)1672 = 1976 DGLS (Soft) 2010, wherein, the Hon’ble Lordships in paragraph 17 have clarified the legal position and it is informed that, once the Magistrate takes cognizance in terms of 2 Cri.WP No.1128/2010 Chapter XV of the Code of 1973, he is not competent to switch back to the pre- cognizance stage and avail of Section 156(3). 4) Based on above observation of the Apex Court, this Court, in the matter of Transparent Energy Systems Pvt. Ltd. Vs. Satyawati Chemicals and Anr.(2007 ALL MR (Cri) 3399)dealt with the matter of identical nature and ultimately allowed the Magistrate to proceed in terms of Chapter XV of Cr.P.C. without dismissing the complaint. 5) Without adverting to the merits of the contentions raised in the complaint, the order of investigation, in terms of Section 156(3) of Cr.P.C., is set aside. The Magistrate is at liberty to proceed in terms of Chapter XV of Cr.P.C. and follow the procedure. It follows the F.I.R. registered consequent upon the investigation under Section 156(3) Cr.P.C. will not survive, it is quashed. 6) Writ Petition is partly allowed to the extent as indicated above. Rule made partly absolute in aforesaid terms. (K.U.CHANDIWAL) JUDGE bdv/