1 ndm 16 wp.1053.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1053 OF 2009 Nitin Bandopant Salagre and ors. ... PETITIONERS Vs. The State of Maharashtra and anr. ... RESPONDENTS -------- Mr. Nitin Pradhan i/b. C.K. Tripathi for Petitioners. Mrs. A.T. Jhaveri, APP for State. Mr. H. Toor with S.B. Pawar i/b S.K. Legal and Associates for Respondent No.2. -------- CORAM : B.R. GAVAI, J. DATE : 07 th April, 2010. P.C. 1 Rule made returnable forthwith. Heard by consent. 2 By way of present petition, the Petitioners impugn the order dated 02 nd December, 2008 passed by the learned Additional Session Judge, Greater Bombay thereby reversing the order passed by the learned Magistrate dated 08 th September, 2008. A complaint has been filed by the present Respondent No.2 against the Petitioners for the offence punishable under Sections 468, 471, 420, 511 read with 34 of the 2 Indian Penal Code. In the said complaint a prayer has been made for an investigation under Section 156 (3) of the Criminal Procedure Code. 3 The learned Magistrate vide order dated 08 th September, 2008 found that prior to directing an investigation under Section 156 (3) of the Criminal Procedure Code, it was necessary that some evidence must be before him. The learned Magistrate therefore had fixed the matter for verification of the complainant. The said order came to be challenged by the Respondent No.2. The learned Revisional Court allowed the revision and directed the police of the concerned police station to conduct an inquiry under Section 156 (3) of the Criminal Procedure Code. The powers under Section 202 of the Criminal Procedure Code are discretionary powers. The learned Magistrate, in view of the powers vested in him under Section 202 of the Criminal Procedure Code, is entitled to postpone the issue of process and direct such evidence as he thinks to be lead. The learned Magistrate in his discretion found that before taking a drastic step of issuance of process, it was necessary that the verification of the complainant was recorded. 4 It could thus clearly be seen that the learned Magistrate had not passed an order either issuing process or dismissing the complaint. He had only postponed the decision thereon till evidence was lead on behalf of the complainant and till his verification recorded. It is thus clear that the orders passed was purely an interlocutory in nature. The 3 question as to whether the revision itself is tenable or not, therefore, would arise. However, since I find on merits that the learned Revisional Court had totally erred in interfering with the discretion exercised by the learned Magistrate, on the basis of conjuncture and surmises, I do not find it necessary to go into that aspect of the matter. The learned Revisional Court observed that unless an inquiry of police is done, it will be difficult for the complainant to establish his case even prima-facie. Such sorts of observations were totally unwarranted and beyond the scope of the proceedings before the learned Revisional Court. I am of the considered view that it was not permissible for the learned Revisional Court to have substituted the discretion exercised by the learned Magistrate. 5 It is a settled law that unless a discretion, which is exercised, has been found to be exercised in a pervert manner. It is not permissible for the superior Courts to interfere with the same. 6 In that view of the matter, the order dated 02 nd December, 2008 is quashed and set aside. The learned Magistrate shall proceed in accordance with the order passed by him dated 08 th September, 2008. However, taking into consideration the facts of the case, the learned Magistrate is directed to complete the procedure as directed by him vide order dated 08 th September, 2008 and decide the question regarding issuance of process within a period of eight weeks from today. 4 7 Needless to state that this Court has not considered the matter from the view point of merits regarding the allegations in the complaint and this Court was required to exercise its extraordinary jurisdiction only since it was found that the jurisdiction exercised by the learned Revisional Court was exercised in a patently erroneous manner. [ B.R. GAVAI, J ]