1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1066 OF 2009 Sau Kamlabai w/o Manikrao kame .. petitioner versus The State of Maharashtra .. Respondent ----- Shri S.S. Manale, Advocate holding for Shri K.S.Bhore, Advocate for the petitioner. shri K.M. Suryawanshi APP for the Respondent. Coram : P.R.Borkar,J. Date : 10/02/2010. ORAL ORDER. 1. Heard. Rule. With consent of learned Advocates for the parties, rule made returnable forthwith and the writ petition is heard finally at the admission stage. 2. The present petitioner filed S.C.C. No.87 of 2004 in the court of Judicial Magistrate, First Class, Tuljapur, against six persons for having committed offences punishable under Sections 323, 504, 341, 342, 2 427, all read with Section 34 of Indian Penal Code, regarding incident that took place on 17.1.2004 between 2.00 p.m. to 10.00 p.m. The learned Magistrate, by order dated 17.2.2004, was pleased to send the complaint for investigation under Section 156(3) of the Code of Criminal Procedure, 1973. Thereafter, police sent report of Non Cognizable summary. It is mentioned that already Non Cognizable complaints were lodged by the complainant and her witnesses on one hand and accused persons on the other, and those were registered as N.C. Nos. 20/2004, 21/2004, 22/2004 and 23/2004 for offences punishable under Sections 323, 504, 506 read with Section 34 of I.P.C. It is stated that the chapter proceedings under Section 107 of Cr.P.C. were initiated. So N.C. summary was rejected. 3. In this case, it is prayer of the petitioner that since the order of acceptance of final report was passed exparte without hearing the complainant, the said order be set aside and the petitioner be heard in the matter. 4. On behalf of the petitioner, reliance was placed on the case of Gangadhar v. State of Maha. AIR 2004 SC 3 4753. In the said case, it is observed that where final report under Section 173 is filed and the Magistrate decides not to take cognizance and to drop proceeding or takes a view that there is no sufficient ground for proceeding against some of persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard him in the matter becomes mandatory. 5. Same view is taken in Sanjay Bansal vs. Jawajarla Vats 2007 AIR SCW 6587. In that case, it is held that where final report is received, Magistrate is bound to give notice to informant if he decides not to take cognizance or not to take cognizance as regards some accused. But, the Magistrate cannot compel police to change their opinion.. Similar view is expressed also in Chitaranjan Mirdha vs. Dulal Ghosh 2009 AIR SCW 3873. 6. So, on the face of record and settled position in law as above, the learned Magistrate ought to have issued notice to present petitioner-complainant and heard her before passing order on the report of the police. 4 7. Hence, writ petition is allowed. The order passed by the learned Magistrate accepting N.C. summary is hereby set aside. 8. Learned Advocate for the petitioner states that his client would appear before the trial court on 8.3.2010. The learned Magistrate shall hear the petitioner-complainant or her Advocate on the report of the police and thereafter decide the matter in accordance with law. 9. Writ petition disposed of. Rule made absolute, accordingly. pnd/criwp1066.09 (P.R.BORKAR, J.)