- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1911 OF 2008 WRIT PETITION NO.1911 OF 2008 WRIT PETITION NO.1911 OF 2008 Ganeshmal J. Jain ...Petitioner vs. The State of Maharashtra & Ors. ...Respondents Mr.Mohite i/b Mr.Ranvir Shekhawat for the petitioner Mr.S.V.Gajre A.P.P. for State Mr.Suresh Jain for respondent no.2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 23,2009 : APRIL 23,2009 : APRIL 23,2009 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned A.P.P for State. Rule. Learned counsel waive service. Taken up for hearing forthwith. 2. The petitioner was arraigned as an accused in the private complaint filed by the second respondent alleging commission of offences under section 420 and 406 of the Indian Penal Code. Verification of the second respondent under section 200 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) was recorded by the learned Magistrate. After recording the verification, on 31st January 2008, the learned Magistrate exercised power under section 156 (3) of the said Code directing the police to register the crime and to investigate the same. Apart from various challenges on merits, the submission of the learned counsel for the - 2 - petitioner is that in view settled law, after recording verification of second respondnent-complainant, the learned Magistrate could not have taken recourse to section 156 (3) of the said Code. He has placed reliance on the decision of the Apex Court in the case of Tula Ram and others Vs.Kishore Siya [(1977) 4 SCC page 459) and the case of D.L.Reddy and others vs. V.Narayana Reddy and others (1976 3 SCC 252). The learned counsel for the second respondent submitted that the second respondent has a good case on merits. However, he did not dispute the settled position of law as regards exercise of power under section 156 (3) of the said Code after recording the verification. 3. I have carefully considered the submissions. The law on the point is well settled. After taking recourse to provisions of section 200 by recording verification of the complainant, the learned Magistrate could not have issued directions under section 156 (3) of the said Court and only option open for him was to follow one of recourses available under sections 202, 203 or 204 of the said Code. In the circumstances, the impugned order dated 31st January 2008 is illegal. Therefore, the said order and as a consequence thereof the F.I.R. registered by the concerned police station will have to be quashed and set aside. 4. Hence, I pass the following order : - 3 - i) Impugned order dated 31st January 2008 passed by the learned Magistrate is quashed and set aside. ii) The F.I.R. (MECR 2 of 2008) registered by the Azad Nagar Police Station, Malegaon pursuant to the order dated 31st January 2008 is quashed and set aside. iii) The learned Magistrate will proceed with the complaint bearing Regular Criminal Case no.614 of 2007 in accordance with law from the stage at which it was pending on the date of passing the impugned order. iv) It is made clear that all contentions of the parties on merits of the complaint are expressly kept open. v) Rule is partly made absolute in above terms. vi) The learned trial Judge and the concerned court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE