1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 475 OF 2010 1. Vinayak s/o. Bhanudas Najan, Age 50 yrs., Occu. Service, R/o. Shevgaon, Dist. Ahmednagar. 2. Bhanudas s/o. Madhav Najan, Age 84 yrs., Occu. Agriculture, R/o. Shevgaon, Dist. Ahmednagar. 3. Yamunabai w/o. Chandu Solat, Age 60 yrs., Occu. Household, R/o. Meri (Shankarwadi), Tq. Pathardi, Dist. Ahmednagar. ....Applicants. Versus 1. State of Maharashtra through Police Inspector, Police Station, Georai. 2. Arunabai w/o. Vinayak Najan, Age 45 yrs., Occu. Household, R/o. Georai, c/o. Shantram Dhondiram Shamse, Dhangar lane, Georai, Tq. Georai, Dist. Beed. ....Respondents. Mr. A.B. Gaikwad, Advocate for applicants. Mr. B.J. Sonawane, Advocate for respondent No. 1. Shri. N.V. Gaware, Advocate for respondent No. 2. CORAM: V. R. KINGAONKAR, J. DATED: 27th August, 2010. PER COURT : 1. By this application, the applicants seek quashing of the order dated 27.9.2006 rendered by the learned Judicial Magistrate (F.C.), Georai in S.C.C.No. 290/2003. By that order, the learned J.M.F.C. directed 2 issuance of process against the applicants for offences punishable under sections 323, 504 and 506 read with section 34 of the I. P. Code. 2. Heard learned counsel for parties. It is pertinent to note that the respondent No. 2 filed the private complaint case, alleging that on 2nd March, 2003, she was assaulted by the applicants at residence of his father. Her statement was recorded in order to verify the complaint. The learned Magistrate did not, however, direct issuance of process on basis of her statement. He called for report under section 202 of Cr. P. C. from the concerned Police Station by order dated 10th April 2003. It appears that no report was received from the concerned Police Station and therefore, all of a sudden, the impugned order was passed on 27th of September 2006 for issuance of process. 3. Mr. Gaikwad seeks reliance on the case of Kuwarjee Jivraj Lodhaya and others Vs. Bhagchand Motilal Raka and another reported in 1992 Mh.L.J. 377. It is worth to be noted that when the material placed on record was not found sufficient for issuance of process after verification of the complaint, the learned Magistrate could not have issued process on the basis of the same material. The proper course to be adopted was either to obtain the police report by taking recourse to the other provisions like issuance of notice to take cognizance for offence under section 187 of the I. P. Code to the P.S.O. of the Police Station or to issue notice for taking cognizance in respect of contempt 3 committed due to disobedience of the directions of the Court. That was not done by the learned Magistrate. The Magistrate has power to control the inquires and investigation under the Code of Criminal Procedure. Instead of exercising such power, the learned Magistrate issued the impugned order on basis of the same material. This is impermissible in the eyes of law. Another course open to him was to direct the complainant to adduce further evidence under section 202 and on basis of any material gathered later on, he could have taken cognizance for issuance of process. That also was not done by him. Under such circumstances, the impugned order is quite unsustainable and is liable to be quashed. 4. In the result, the application is allowed. The impugned order is quashed and the complaint application is directed to be proceeded further in accordance with the law. [ V. R. KINGAONKAR, J.] ssc/ca475.10