1 (Cri WP 3334 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3334 OF 2010 Lemon Entertainment Limited ...Petitioner Vs. The State of Maharashtra and Ors. ….Respondents ----- Mr.M.R. Pawar and Mr. Arvind Gaikwad for Petitioner Mr.D.R. More -APP for the State Mr.Kishor Bhatia for Respondent No.2 ----- CORAM: V.M. KANADE J. DATED: 3RD DECEMBER, 2010 P.C. 1. Heard the learned counsel for the Petitioner, Respondent No.2 and the learned APP for the State. 2. The Petitioner, by this petition, is seeking a direction from this Court, directing the Metropolitan Magistrate, 64th Court, Andheri to give the Petitioner an opportunity of being heard before issuance of process and is also seeking an order for setting aside the order dated 22.10.2010 passed by the Sessions Judge and order dated 4.10.2010 passed by the Metropolitan 2 (Cri WP 3334 of 2010) Magistrate on an application filed by him seeking a similar direction. 3. It is submitted by the learned counsel for the Petitioner that before issuance of process, the Petitioner ought to have been granted an opportunity to point out the suppression of fact made by the Complainant in his complaint in order to curtail the wastage of time of the Court. He submitted that the procedure which is followed in a warrant triable case i.e. filing an application for discharge should also be permitted in a summons case. In support of the said submissions, he relied on the provisions of section 202 and section 251 of Cr.P.C. He also invited my attention to the judgment in the case of Satish Mehra vs. Delhi Administration and Anr. [(1996) 9 Supreme Court Cases 766] and also invited my attention to the paragraphs 12 to 15 of the said judgment. 4. In my view, the said submissions made by the learned counsel for the Petitioner cannot be accepted. It is a well settled position in law that prior to the issuance of process in a summons case, the accused does not have any locus and, therefore, cannot be 3 (Cri WP 3334 of 2010) heard by the Magistrate at that stage. Secondly, in a summons case, since there is no provision for an application for discharge, such an application cannot be entertained. The Apex Court in the case of Adalat Prasad vs. Ruplal Jindal and Ors. [(2004)7 SCC 338] has now resolved the said controversy and has held that in a summons case, an application for discharge will not maintainable. The ratio of the said judgment is binding on this Court. The provisions of section 202 and 251 of the Cr.P.C. have no application to the submissions made by the learned counsel for the Petitioner. The ratio of the judgment on which reliance is placed by the learned counsel for the Petitioner pertains to a warrant triable case and lays down the procedure which is to be followed by the Magistrate while entertaining an application for discharge in warrant triable case under sections 227 and 228 of the Cr.P.C. and, therefore, the observations made by the Apex Court in the said case are not applicable to the facts of the present case followed by the Magistrate. Writ petition is, therefore, dismissed. (V.M. KANADE J.)