vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.982 OF 2008 WRIT PETITION NO.982 OF 2008 WRIT PETITION NO.982 OF 2008 Sandeep Rasiklal Makecha ... Petitioner V/s. Abhijit Hsg. Pt. Ltd. & Anr. ... Respondents Mr.Girish Kulkarni for Petitioner Mr.Abhijit for Respondent No.1 Ms.A.A. Mane, APP, for State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: MAY 2, 2008 MAY 2, 2008 MAY 2, 2008 P.C.: P.C.: P.C.: . The petition challenges the order passed by the learned Metropolitan Magistrate, Railway Mobile Court at Andheri, Mumbai on 14.8.2007. The learned Magistrate has after recording the verification of the complaint filed by the respondent has directed an enquiry under section 156(3) of the Criminal Procedure Code and directed the police to register the crime against the accused u/s 406, 420 of the IPC and to file a report in due course. The petitioners are aggrieved by the procedure followed by the learned Magistrate. The learned counsel for the petitioner submits that once cognizance of the complaint is taken, the Magistrate cannot direct any enquiry under 156(3) but can only direct that an enquiry be made u/s 214 under Chapter 12 of the CrPC. It is submitted that the learned Magistrate having recorded the verification of the : 2 : complainant, had no powers to direct an enquiry under 156(3). Reliance is placed on the judgment of the Supreme Court in the case of Tula Ram & Ors. v/s. Kishore Singh, AIR 1977 SC 2401 AIR 1977 SC 2401 AIR 1977 SC 2401 wherein the Supreme Court has formulated the following legal propositions: 1. That a Magistrate can order investigation under S.156(3) only at the pre-cognizance stage, that is to say, before taking cognisance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec.202 of the Code. 2. Where a Magistrate chooses to take cognisance he can adopt any of the following alternatives: (a) He can peruse the compliant and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 4. Where a Magistrate orders investigation by : 3 : the police before taking cognizance under S.156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above. ... 2. In this view of the matter, the order impugned in this petition dated 14.8.2007 directing enquiry under 156(3) is set aside. The matter is remanded to the Metropolitan Magistrate, Railway Mobile Court, Andheri for acting in accordance with law. The learned Magistrate will bear in mind the principles laid down in the case of Tula Ram & Ors. v/s. Kishore Singh (supra) before passing any order. 3. Writ Petition is disposed of accordingly.