IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.945 OF 2008 Nilesh @ Balasaheb Vishwanath Sarnaik (Jadhav) & Anr. .. Petitioners Vs. Shivaji Hindurao Patil & Anr. .. Respondents Mr.A.P.Mundargi, Sr.Advocate i/by Ms.Swapna Kode for the Petitioners. Mr.J.G.Reddy for Respondent No.1. Mr.Y.S.Shinde, A.P.P for Respondent No.2. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 11th July 2008. P.C.: . Heard learned senior counsel appearing for the petitioners and the learned counsel appearing for the 1st respondent. The 1st respondent in this petition is the original complainant in a private complaint filed against the petitioners. The process was issued on 31st October 2006 on the private complaint filed by the 1st respondent. A revision application preferred by the petitioners was dismissed by the learned Additional Sessions Judge. 2. One of the submissions made by the learned : 2 : senior counsel appearing for the petitioners is that the order of issuing process was passed by the learned trial Judge without examination of the complainant on oath as required by section 200 of the Code of Criminal Procedure, 1973. The learned senior counsel appearing for the petitioners relied upon a decision of Division Bench of this Court of Maharaja Developers and another Vs. Udaysingh s/o.Pratapsingh Bhosale (2007 ALL M R (Cri.) 1339). On the last date, the learned senior counsel appearing for the petitioner produced certified copy of the roznama in support of his contentions. Time was granted to the learned counsel appearing for the 1st respondent to seek instructions in this behalf. The learned counsel appearing for the 1st respondent, on instructions, fairly states that the verification of the 1st respondent-complainant was not recorded by the learned Magistrate. He suggested that instead of keeping this petition pending in this Court, by setting aside the order issuing process, the complaint may be relegated to the stage of examination of the complainant under section 200 of the said Court. 3. I have, therefore, taken up the petition for final disposal. In the present case, on the complaint filed by the 1st respondent, an order was passed on 09th : 3 : June 2006 by the learned Magistrate postponing the issuance of process and calling for report under section 202 of the said Code. Under clause (b) of sub-section 1 of section 202 of the said Code, such an order could not have been passed without examination of the complainant under section 200 of the said Code. After considering the report under section 202 of the said Code, an order issuing process has been passed by the learned Judge. This crucial aspect appears to have been overlooked even by the learned Additional Sessions Judge. As a result, the orders dated 20th May 2006 and 21st October 2006 passed by the learned Magistrate on the complaint filed by the 1st respondent deserve to be quashed and set aside with a direction to the learned Magistrate to proceed with the complaint in accordance with law. 4. Hence, I pass the following order: (i) The orders dated 20th May 2006 and 31st October 2006 (Exhibits B and C hereto respectively) are quashed and set aside. Consequently, the impugned judgment and order dated 05th April, 2008 also stands set aside. (ii) The learned Magistrate shall deal with the : 4 : complaint in accordance with law. (iii) Petition is allowed in above terms with no orders as to costs. (iv) All contentions raised by the petitioners in this petition are expressly kept open. (A.S.Oka,J)