WP.400-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 400 OF 2010 Shafi Hajrat Bapusaheb Inamdar & Ors. ...Petitioners Vs. State of Maharashtra & Ors. ...Respondents *** Mr. M. R. Deshpande, for the Petitioners. Mr. A. S. Shitole, APP for the Respondent-State. Mr. P. M. Pradhan, for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : NOVEMBER 29, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the petitioners and respondent No.2. The petitioners are aggrieved by the order passed in Cri. Revision Application No. 230 of 2009. By the said order dated 7th December, 2009 the 3rd Ad Hoc Additional Sessions Judge, Solapur was pleased to dismiss the revision application filed by the petitioners herein, challenging the order of issuance of process, passed by the J.M.F.C. Court No.2, Solapur, on a complaint filed by WP.400-10 - 2 - respondent No.2. 2. The brief facts are as under- . Respondent No.2 had filed a complaint against the petitioners for the offences punishable under S. 406, 420, 467, 468, 471, 504, 506 read with S. 34 of the I. P. Code. Initially, this complaint was assigned to the J.M.F.C. Court No.3 by the Chief Judicial Magistrate, Solapur. The said Court passed the order, directing the inquiry under S. 202 Cr. P.C. The said Court, however, while the inquiry was still pending passed the order as under- “As per Ex. 6, 7, this Court has no jurisdiction to proceed with complaint. . As such U/s. 201 Cr. P. C. complaint be returned back to the complainant for proper presentation before appropriate Court.” 3. Thereafter, the complainant approached the Chief Judicial Magistrate, Solapur, who has assigned the case to J.M.F.C. Court No.2, Solapur. The said Court thereafter issued process against the present applicants. The petitioners herein did not challenge the order of returning the complaint, passed under S. 201 Cr.P.C. and that order attained the finality. The petitioners, however challenged the order of issuance of process passed by the J.M.F.C. Court No.2. The revision preferred WP.400-10 - 3 - against the said order was dismissed. 4. The learned counsel appearing on behalf of the petitioners submitted that J.M.F.C. Court No.3, Solapur having passed the order directing inquiry under S. 202 Cr. P. C., as long as the said inquiry was not completed and the report was not tendered, the J.M.F.C. Court No.2, Solapur to whom the said case was transferred, should not have issued the process directly without first waiting for the report. The learned counsel for the petitioners invited my attention to the provisions of S. 201 and 202 Cr. P.C. and submitted that the trial Court had erred in issuing the process directly. It is submitted that the J.M.F.C. Court No.3 should not have passed an order returning the complaint under S. 201 Cr. P.C. He also invited my attention to an order dated 30th July, 2009 which reads as under- “Perused complaint. Considering nature of charges it is necessary to call for report U/s. 202 Cr. P.C. . As such, call for report U/s. 202 Cr. P. C. from P.S. Jail Road.” 5. It is not clear under which circumstances the said Court passed this order. In any event, the order passed by the J.M.F.C. Court No.3, Solapur, admittedly, has not been challenged by the petitioners herein. Therefore, the submissions of the learned counsel for the WP.400-10 - 4 - petitioners cannot be accepted. It is a settled position in law that the orders which are passed by the Court which do not have jurisdiction to pass such orders are non-est and after the complaint is returned under S. 201 Cr. P.C. these orders cease to exist on return of the complaint under S. 201 Cr. P.C. and the Court who is competent to hear and decide the complaint can pass the fresh order. The submission of the learned counsel for the petitioners that the J.M.F.C. Court No.2 could not have directly passed the order of issuance of process without waiting for the report which was ordered by the earlier Court i.e. J.M.F.C. Court No.3, Solapur, cannot be accepted for the aforesaid reasons. The Sessions Court also has given cogent reason and has made the same observation. Hence, no case is made out for interference with the order of issuance of process, since this was the only ground which was challenged by the petitioners. In the result, writ petition is dismissed. However, it is clarified that the petitioners are at liberty to file an application for discharge at an appropriate stage under S. 245(2) Cr. P.C. If such an application for discharge is filed by the petitioners in the trial Court, the trial Court shall dispose of the same expeditiously and in any case within a period of three months thereafter. 6. At this stage, the learned counsel for the petitioners requests WP.400-10 - 5 - the stay of this order for a period of 8 weeks for challenging this order in the Apex Court. The request is declined. . The writ petition is disposed of in above terms. [ V. M. KANADE J.]