1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.538 OF 2009. WITH CRIMINAL WRIT PETITION NO.511 OF 2009. Nawab Behbood Ali Khan S/o Nawab Mumaz Ali Khan ...Petitioner. VERSUS. The State of Maharashtra and another ...Respondents. ------------------------------------------ Mrs. Sadhana S.Jadhav, Advocate the petitioner. Mr. A.V.Godhalekar,A.P.P.,for the respondent No.1. Mr. R.S.Deshmukh,Advocate for respondent No.2. ------------------------------------------ (CORAM : V.R.KINGAONKAR, J ) DATE : 7th September,2009. PER COURT : 1. Heard. 2. These petitions filed by same petitioners, who is arrayed as accused in Criminal Proceedings of two separate cases bearing S.C.C.No.495/2/2005 and S.C.C.No.495/3/2005. He gave an application in both Criminal cases,seeking discharge on the grounds that he is unconcerned with the alleged plot on which the illegal or unauthorised construction is said to have been raised. He contended that he has not made such construction, therefore, was not liable to face prosecution for the offenses under sections 52,53 and 43 of Maharashtra regional Town Planning Act,1966 (For short “MRTP Act”) 3. The learned Magistrate rejected the application on the 2 ground that such discharge can not be claimed in summary or summons case. The learned Magistrate held that, because the cases were of summary nature, no provision to discharge the petitioner is available in the Criminal Procedure Code. 4. It is worthy to note that the learned Magistrate did not record any other reason except absence of provision under the Criminal Procedure Code to deal with such an application. Naturally,it is necessary to examine whether the learned Magistrate can consider the application for discharge or that, there is total absence of power to deal with such application. Admittedly, the charge-sheet has been filed in both the criminal cases. It is also undisputed that on the basis of complaint lodged by the Building Inspector, investigation was carried out by the Police. Therefore, these are not cases instituted in pursuance to private complaint. 5. There is no substance in the observations of the learned Magistrate that, he is not empowered to discharge the accused in summary or summons case. Mrs. S.S.Jadhav invited my attention in the case John Thomas Vs. Dr. K. Jagadeesan, 2001 AIR SCW 2529. The Apex Court analysed section 258 of the Criminal Procedure Code. The Apex Court observed- “One of the normal rules in summons cases is that once trial started,it should reach its normal culmination. But S.258 is included in that chapter in the form of an exception to the aforesaid normal progress chart of the trial in summons cases.” 6. In such a case, even the purport of section 59 of 3 Criminal Procedure Code ought to have been taken into account. The provision of section 59 of the Criminal Procedure Code reads as follows- “Section 59- No person who has been arrested by a Police Officer shall be discharged except on his own bond, or on bail, ‘or under the special order of a Magistrate.” 7. The above provision gives ample power to the magistrate to discharge any arrested accused, if there is absolutely no ground to substantiate his detention or to continue the proceedings against such persons. Only requirement of section 59 is that the Magistrate is required to pass”Special Order”. So, if section 59 and section 258 of Criminal procedure Code are read together,in an appropriate case, even in summary or summons case, the learned Magistrate is empowered to pass order of discharge. The observations of the learned magistrate are, therefore, incorrect and improper. 8. For the forgoing reasons, the petitions are allowed. The impugned orders are quashed. The learned Magistrate is directed to consider the applications of the petitioner on merits thereof and to decide the same expeditiously within three months, having regard to the evidence appearing from the charge-sheet and the legal position. ( V.R.KINGAONKAR, J ) MTK/cri.W.P.538.09 4