Allowed

Balaji Bhujangrao Suryawanshi v. the State of Maharashtra

Bombay HC13 Nov 2013WP/817/2013

Case brief

AI extract

What is this about?

This criminal writ petition challenges an order where the Magistrate directed examination of the complainant on oath instead of ordering investigation. The High Court, invoking Article 227, set aside the order and remitted the matter, directing the Magistrate to consider the application without forcing examination, while explicitly refraining from expressing an opinion on the merits.

What did the court decide?

The Petition was allowed; the impugned order was set aside; the Magistrate was directed to consider the application afresh without forcing examination of the petitioner.

Balaji Bhujangrao Suryawanshi Vs the State of… — Civil Procedure and Limitation | Bombay HC (2013)

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Cri.W.P.817.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 817 OF 2013

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Balaji S/o Bhujangrao Suryawanshi
Age : 48 years, Occ : Agriculture,
R/o Lohargalli, Loha, Tq. Loha,
Dist. Nanded.

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 ..PETITIONER

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-VERSUS-

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The State of Maharashtra
Through Police Station Officer,
Police Station, Loha,
Tq. Loha, Dist. Nanded.

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 ..RESPONDENT

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Advocate for Petitioner : Mr. A.R. Devakate
Advocate for Respondent : Mr. P.N. Muley

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CORAM : ABHAY M. THIPSAY, J.

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Dated: November 13, 2013

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ORAL JUDGMENT :

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Rule. By consent, Rule made returnable

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forthwith. By consent, heard finally.

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2.The petitioner made an application
before the Judicial Magistrate, First Class, Loha

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sga/-

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2 Cri.W.P.817.13.odt

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alleging commission of offences punishable under
Section 420 of the Indian Penal Code (IPC),
Section 467 of IPC, Section 468 of IPC, Section
471 of IPC, Section 406 of IPC, Section 408 of
IPC, Section 409 of IPC and Section 120-B of IPC
read with Section 34 of IPC by certain persons,
named as accused therein, and praying that
investigation as contemplated under section 156(3)
of the Code of Criminal Procedure (hereinafter
referred to as “the Code”) be ordered in the
matter. On this, the learned Magistrate by his
order dated 28.08.2013 directed a regular case to
be registered in the matter and kept the same for
examination of the complainant under the
provisions of section 200 of the Code.

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The petitioner is aggrieved by the said
order, as according to the petitioner, all that he
had asked for was an order for investigation into
the alleged offences and he had no intention to
have himself examined on oath which could be only
with the object of proceeding with the matter in a

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sga/-

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3 Cri.W.P.817.13.odt

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manner provided in Chapter XV of the Code. The
petitioner has, therefore, approached this Court
invoking its jurisdiction under Article 227 of the
Constitution of India.

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3.I have heard the learned counsel for the

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petitioner. He submits that considering the
nature of the alleged offences, what was necessary

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was investigation into the matter . He submits that examining the complainant on oath would not

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be sufficient in the facts and circumstances of
the case. He further submits that since the
petitioner had approached the Magistrate with a

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specific prayer, though it was open to the
Magistrate to grant or refuse the prayer, it was

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not open to the learned Magistrate to adopt a
third course in the matter viz:- directing the

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petitioner to be examined on oath, though the
petitioner never wanted such a course to be
adopted.

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sga/-

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4 Cri.W.P.817.13.odt

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4.I decline to express any opinion on

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on oath as contemplated under section 200 of the

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Code.’ However, without expressing any final opinion on the legal question that is involved, it needs to be observed that in such cases i.e. where the prayer is only for an order for investigation as contemplated under section 156(3) of the Code, the Magistrate must, if he intends to decline to exercise his powers under section 156(3) of the Code, categorically state so, and record brief reasons for his decision.

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5.In the instant case, since the

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petitioner, as aforesaid, was not willing to have
himself examined on oath, it appears proper to me
that the Magistrate should have been categorical

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on, whether or not, a case for ordering

sga/-

Cri.W.P.817.13.odt

investigation into the matter had been made out or

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not; and ought not to have adopted a third course.

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6. In the result, the Petition is allowed.

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The impugned order is set aside.

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The learned Magistrate shall consider

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the application made by the petitioner afresh and
keeping in mind that the petitioner is not ready
to adopt the course of having himself examined
under the provisions of section 200 of the Code.

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7.It is made clear that no opinion on the

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merits of the application made by the petitioner
before the Magistrate has been expressed by this
Court.

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8.Rule is made absolute in the aforesaid

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terms.

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( ABHAY M. THIPSAY, J. )

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sga/-

Balaji Bhujangrao Suryawanshi v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Balaji Bhujangrao Suryawanshi v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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