The main legal point established in the judgment is the necessity for the magistrate to apply his mind to the allegations made in the complaint and ensure that the ingredients to constitute the offense complained of have been made out.

N.W. Sambre, J.

Heard respective Counsel.

2. The applicant takes an exception to the order passed by the learned Judicial Magistrate First Class, Kallam, in Regular Criminal Case No.70 of 2003 on 25th April, 2003, ordering issuance of process against him for offences punishable under sections 418 and 420 of the Indian Penal Code. The said order is further confirmed by 2nd Ad hoc Additional Sessions Judge, Osmanabad vide order dated 24th August, 2005, passed in Criminal Revision Application No.57 of 2003. Thus, the present application.

3. Perusal of the order passed by the learned Magistrate ordering issuance of process against the applicant-accused depicts that he has neither applied his mind to the contents of the complaint, verification, and documentary evidence as is brought on record while dealing with the complaint. The order sans reasons and satisfaction about the ingredients of the offence under sections 418 and 420 of the Indian Penal Code. The reasons are the live link, which speaks the mind of a Judge who passes an order either way.

4. In view thereof, the order of issuance of process, passed by the Judicial Magistrate First Class, Kallam, on 25th April, 2003, in Regular Criminal Case No.70 of 2003 and confirmed in Criminal Revision Application No.57 of 2003 on 24th August, 2005 by 2nd Ad hoc Additional Sessions Judge, Osmanabad, are contrary to the law laid down by this Court, in the matter of State of Maharashtra v. Shashikant s/o Eknath Shinde, reported in 2013 ALL MR (Cri) 3060. Paragraphs 29, 30, 32 and 35 of the said judgment read thus :-

"29. The Apex Court in the said case has referred to its earlier observations made in the case of Pepsi Foods Ltd. And another v. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749); (1998 ALL MR (CRI.) 144 (S.C.)) which reads thus :

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

30. In view of the aforesaid Judgments of the Apex Court, it can, thus, clearly be seen that when the Magistrate passes order directing investigation under Section 156 (3) of Cr.P.C., it is necessary that, prior to doing so, he should apply his mind to the case before him. Least that is expected of the Magistrate, is to verify from the averments of the complaint as to whether the ingredients to constitute the offence/s complained of have been made out or not. As such the order under Section 156(3) of Cr.P.C., should depict the application of mind. No doubt the Magistrate is not expected to give elaborate Judgment at that stage. However, the least expected is that the order should depict application of mind and as to how the complaint discloses the ingredients to constitute the offence complained of.

32. It can, thus, be seen that the Division Bench of this Court has clearly held that if the petition or complaint does not disclose commission of cognisable offence, the learned Magistrate cannot pass the order under Section 156(3) of Cr.P.C.. It is also