JUDGMENT - P.C.:---Rule. By consent rule heard forthwith.

2.Mr. R.M. Tipnis being petitioner, has filed this writ petition under Article 226 of the Constitution of India against State of Maharashtra, and Metropolitan Magistrate, 21st Bandra Court, Mumbai, for the reliefs of :

To call the records and proceedings of Case No. 105/MISC of 98 in 21st Bandra Court of Metropolitan Magistrate and the record of Santacruz Police Station and direction being granted to the police to register and investigate the offence as well as writ of Mandamus directing the learned Magistrate to respect the Rule in the Criminal Manual and the High Court circular as to age be respected and complied with.

3.The writ petitioner on the specific overt acts of certain programme arranged to be performed by way of Musical performance at the Centaur Hotel, Juhu by Mr. Gulam Ali, a Gazal Master from Pakistan visited Bombay, which was a private function when drinks and dinner was sponsored by one Navin Rohtagi of Saphire Entertainment Ltd. by inviting above 700 high Society persons at Centaur Hotel, Juhu, Bombay.

4.According to him, Shiv Sena, a political organisation, most predominant in Mumbai had upon advance intimation of the said programme had conspired to disrupt the concert in retaliation of the killings of Hindus in Kashmir valley and a well designed plan was hatched as was evident from the crowd and strength of Shiv Sainiks that participated in the attack and that the said large scale attack was to be planned, in the context of the police having jurisdiction had not taken any steps or cognizance of. It was the case of the writ petitioner being the citizen interested always in the public lives moved the concerned police but they never entertained any complaint from him and that in order to avoid any breach of peace and loss of lives and property, the writ petitioner filed complaint under section 200 of Cr. P.C. first to the Magistrate Court at Andheri and that he withdrew it from the said Court for one reason or other and then he resubmitted the said complaint to the Metropolitan Magistrate, 21st Court, Bandra, Mumbai, under Lodging No. 105/Misc. of 1998 on 4th May, 1998. The learned Magistrate has kept the said complaint for verification on 12-5-1998. This order was passed on 4th May, 1998, itself.

5.However, there was endorsement made by Mr. Tipnis, the writ petitioner himself, which is as follows :

"As the Hon'ble Court declines to have the matter taken up for recording examination under section 200 Cr.P.C. and since the matter is volatile involving riot in Bombay I beg to withdraw the complaint so as to file in the Hon'ble High Court under section sic Article 227 Constitution. This is inspite of my pointing out the High Court Circular."

6.Upon the above endorsement made by the writ petitioner himself, the learned 21st Metropolitan Magistrate, Andheri, Bombay on 4th May, 1998 itself has passed the following order:

"It is incorrect that I have declined to examine complainant under section 200 of Cr. P. Code, after taking cognizance of the complaint. The matter is fixed for recording verification on 12-5-1998. Order to that effect is passed on the first page of the complaint. However, complainant is insisting that it should be taken up in any case, before 8-5-1998, when his request was not acceded to because of the position of my board, he submitted that he wants to withdraw the complaint.

As far as the circular pointed out by him, it is to be mentioned that the given date i.e. 12-5-98 is the earliest possible date, considering the position of the board and four holidays i.e. 7, 9, 10 and 11 May intervening.

In view of this, complaint is allowed to be withdrawn."

7.We have heard Mr. R.M. Tipnis who appeared in person and argued his case per contra. Mr. R.L. Patil, learned Additional Public Prosecutor very much reiterated his contentions on the basis of the reply filed by him in this writ petition. In so far as Musical concert programme by Gulam Ali a Pakistan N

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