1 WP.378-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.378 OF 2011 Mrs.Sanju Verma. .. Petitioner. Versus The State of Maharashtra and another. .. Respondents. .... Mr.Karan Bhosale, Advocate a/w. Mr.O.A. Siddiqui & Mr.Rajendra Rathod, Advocates for the Petitioner. Mr.J.P. Kharge, A.P.P. for the State. .... CORAM : A. R. JOSHI, J. DATED : 25th MARCH, 2011. P. C. : 1. Heard. Rule. Rule is made returnable forthwith by consent of the parties. 2. Heard rival submissions at length on this Criminal Writ Petition No.378 of 2011 preferred by the petitioner/complainant who had lodged a Criminal Complaint No.17/N/2011 before the Metropolitan Magistrate, 9 th Court, Bandra, Mumbai against five 2 WP.378-11 accused persons alleging certain offences against them and for action punishable under Sections 420, 500, 506, 509 r/w. 120-B and also r/w. Section 34 of Indian Penal Code. Apparently, prior to filing of such complaint before the Magistrate, complaint was lodged before the Commissioner of Police along with copies to the Additional Commissioner, Deputy Commissioner and Senior Inspector of Police Vakola police station. Said complaint was sent through the Advocate, vide a sort of a notice dated 2nd December, 2010 asking for the police machinery to take appropriate action against the persons named in the complaint. Said action was sought to be taken for and on behalf of the original complainant, who subsequently lodged the complaint before the Magistrate Court. Apparently, for the police machinery not taking an action, criminal complaint was lodged before the Magistrate. 3. Initially, the complaint was lodged before the 9th Court, Bandra. However, by order dated 18.1.2011 said complaint was transferred to Court No.32, Bandra, Mumbai. On perusing the complaint and hearing the learned Counsel for the complainant, 3 WP.378-11 order was passed by 32nd Court, Bandra, Mumbai on 2nd February, 2011 which reads as under :- “ ORDER Perused the Complaint. Heard the learned Counsel of complainant. I have gone through facts and circumstances, particularly documents filed on record. I have also gone through a authority cited on record by learned Counsel of complainant. Considering all this above facts according to me a complaint is not fit to send investigation u/s. 156(3) of Cr.P.C.. Therefore, complaint be put up on next date for recording a verification of a complainant.” 4. Admittedly, it may be worthwhile to mention that initially Writ Petition was preferred before the Division Bench, of which this Court was one of the Members. On various dates, Writ Petition was taken up before the Division Bench and vide order dated 28.2.2011 directions were given for placing the matter before the Single Judge and liberty to apply for relevant amendment vis-a-vis deleting the name of the Metropolitan Magistrate who has passed the order dated 2.2.2011. For the sake of ready reference, said order of the Division Bench dt. 28.2.2011 is reproduced hereunder : 4 WP.378-11 “ 1. In the light of observations made by the Court, Counsel for the petitioner on instructions states that the petitioner will forthwith delete respondent Nos.3 and 4. Besides, the Petition would be pursued only under Article 227 of the Constitution of India r/w 482 of the Criminal Procedure Code, 1973 to question the correctness of the order dated 2nd February, 2009. The petitioner to carry out the necessary amendment in the Petition in the above terms. That be done forthwith in the course of the day. 2. Subject to above, Petition be listed before the learned Single Judge. Liberty to apply.” 5. Under the above premise, after the amendment in the Petition as to struck out the prayer for taking recourse to Article 226 of Constitution of India, matter was brought before this Court; and it is being dealt with by this order after hearing the rival arguments. Needless to mention that present matter is taken up by this Court for the purpose of ascertaining whether the impugned order dated 2.2.2011 is of such a perverse nature or is bad in law so as to interfere with and to quash the same in view of the mandate given by Article 227 of the Constitution of India and Section 482 of Criminal Procedure Code. 5 WP.378-11 6. It is submitted on behalf of the Petitioner that firstly the conduct of the concerned learned Metropolitan Magistrate is required to be seen in order to ascertain the perversity of the order or otherwise. It is vehemently argued that after filing of the complaint, on various dates the matter was adjourned and ultimately it was transferred to Court No.32, though, earlier it was produced before Court No.9, Bandra, Mumbai. 7. It appears that on 18.1.2011 the 9th Court, Bandra passed an order in vernacular Marathi. The gist of the said order is that :- all the accused are residents of Santacruz and entire transaction had taken place at and within the jurisdiction of Vakola police station and as such due to oversight said matter appears to have been filed before Court No.9 and as such it is required to be transferred to Court No.32 which has jurisdiction to entertain, and as such the matter was referred to Court No.32. Consequently, the impugned order came to be passed by Court No.32. 8. By pointing out the above factual position, it is submitted on 6 WP.378-11 behalf of the petitioner that infact much delay has been caused in passing the initial orders after lodging of the complaint, and also on the ground that the earlier Court No.9 had no jurisdiction to entertain the complaint. At this juncture, it must be mentioned that the said order dated 18.1.2011 is not challenged in the present Writ Petition. Moreover, when the Writ Petition was earlier presented before the Division Bench for taking action and taking recourse to Articles 226 & 227 of the Constitution of India read with Section 482 of Criminal Procedure Code and when the hearing was conducted then, it was thought fit by the Petitioner to delete the name of the concerned Magistrate, and taking recourse to only Article 227 and not Article 226 of the Constitution of India. The amendment mentioned in the said Writ Petition clearly shows this position. 9. Secondly, it is argued that the order of the Metropolitan Magistrate, 32nd Court is passed without any jurisdiction and as such it is null and void. In support of this submission, attention of this Court is drawn towards some compilation made by one 7 WP.378-11 Advocate who is named in the said compilation and it gives a handy note in order to find out the jurisdiction of particular case vis-a-vis the Court numbers. In fact, whether particular Court is having territorial jurisdiction to entertain any complaint cannot be decided on such type of compilation prepared by an Advocate. However, it is a question to be dealt with otherwise, and when the Court of competent jurisdiction i.e. Court No.9 had passed judicial order dated 18.1.2011 on this aspect referring the matter to Court No.32, now it can lie on the mouth of the petitioner that Court No.32 had no jurisdiction and consequently to plead that the order is null and void. 10. Further, it is submitted that on lodging of the said complaint by the petitioner, recourse should have been taken to Section 156(3) of Cr.P.C. by the concerned Magistrate and matter should have been sent for police investigation. On this submission, the impugned order which is earlier reproduced gives ample explanation. Moreover, if the prayer clause (a) of the said complaint, which is on the internal page -15 of the said complaint, 8 WP.378-11 which is annexed to the present Petition, is seen then the very first prayer mentioned in para 25(a) is regarding taking action under Section 204 of Cr.P.C. Said prayer 25(a) is reproduced for ready reference : “25 (a) This Hon'ble court be pleased to issue summons against accused persons under section 204 of Cr.P.C. for the offences committed by the accused persons under section 420, 503, 504, 509, 500 R/w 120(B) r/w 34 of Indian Penal Code and may deal with them according to the law.” . Though, this was the prayer in the prayer clause (a) above, in the prayer clause (b) it is again mentioned as under : “25(b) This Hon'ble court will be please to issue process under section 156(3) of Cr. P. C. and send the complaint to the Sr. Inspector of Police of Bandra-Kurla Complex Police Station for Investigation.” 11. Considering the tenor of the complaint, the averments therein and mainly the prayer clauses and considering the import of the impugned order dated 2.2.2011, it cannot lie in the mouth of the petitioner that specific directions as per his choice were to be 9 WP.378-11 followed by the concerned Metropolitan Magistrate and a particular mode was required to have been adopted. If such type of argument is accepted, then after lodging of any criminal case before the concerned Magistrate, there cannot be any discretion left out though allowed as per the Criminal Procedure Code for concerned Magistrate to deal with the case accordingly. In other words, it can be said that any party can compel the Court to act in a particular manner when otherwise the order of the Court is not perverse or without jurisdiction. 12. In view of the above, while considering the contents of the order passed on 2.2.2011 in view of this Court, there is nothing to show that the order is passed without jurisdiction or the said order is of such a perverse nature so as to set it right under the writ jurisdiction and specifically taking recourse to Section 482 of Cr.P.C.. In that view of the matter, there is nothing in the present Writ Petition to be allowed and the same is dismissed. Rule stands discharged accordingly. 10 WP.378-11 (A. R. JOSHI, J.) PPD