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2024 Supreme(Bom) 866
IN THE HIGH COURT OF BOMBAY AT GOA
Bharat P. Deshpande, J.
Ms. Ashwini Agni - Petitioner
Versus
Mr. Kassim Jamuluddin Shaikh and ors. - Respondents
Criminal Writ Petition No. 37 of 2024
Decided On : 18-09-2024
Important Points
The court clarified that a challenge to a Magistrate's order directing an investigation is premature until the stage of issuing process under Section 204 of Cr.P.C. is reached.
Subject
Criminal Law - Writ Petition
Act Referred
CRIMINAL PROCEDURE CODE : S.156(3), S.160, S.190, S.202, S.202(1), S.202(1)(b), S.203, S.482
INDIAN PENAL CODE : S.120(a), S.120(b), S.182, S.211, S.34, S.383, S.384, S.406, S.499, S.506
Headnote
Criminal - Writ Petition - Section 202, 203, 204 of Cr.P.C. - The court interpreted the provisions regarding the inquiry and investigation process, emphasizing the necessity for the Magistrate to assess sufficient grounds before proceeding with a complaint.
Fact of the Case:
The Petitioner, a practicing Advocate, challenged a Magistrate's order directing police investigation into a complaint alleging various offenses, claiming lack of jurisdiction and failure to comply with procedural requirements.
Finding of the Court:
The court found that the Magistrate's order was not premature as it was at the investigation stage under Section 202 of Cr.P.C., and the Petitioner had no cause of action to challenge the order at this stage.
Issues: Whether the Petitioner had a valid cause of action to challenge the Magistrate's order directing an investigation under Section 202 of Cr.P.C.
Ratio Decidendi: The court held that the Petitioner, although named as an Accused, was not treated as such until the Magistrate formed an opinion under Section 204 of Cr.P.C., making the challenge premature.
Result: The Petition is rejected.
Advocate Appeared:
For the Petitioner:Mr. A.F. Diniz, Senior Advocate with Mr. Junaid Shaikh, Advocate
For the Respondent: Mr. Kassim Shaikh, Mr. Nikhil Vaze, Additional Public Prosecutor
JUDGMENT :
Bharat P. Deshpande, J.
1. Rule. Rule made returnable forthwith.
2. The matter is taken up for final disposal with consent of the parties.
3. Heard the learned Senior Counsel Mr. Diniz appearing with Mr. Junaid Shaikh for the Petitioner and Respondent No. 1 appearing in person.
4. The Petition is filed with the following prayers:
a) For a writ of certiorari or a writ in the nature of certiorari, any other writ, direction or order, order under Section 482 of the Criminal Procedure Code thereby bearing Case No. MISC/2994/22 quashing and setting aside the Order dated 16/06/2023 and the application/ complaint under Section 156(3) complaint bearing Case No. MISC/2994/22 filed before the Metropolitan Magistrate Kurla with proceedings initiated thereby, insofar as the Petitioner in concerned.
b) Pending the hearing and final disposal of the Petition the operation and execution of the order dated 16/6/2023 and proceedings under Section 156(3) insofar as the Petitioner is concerned be stayed.
c) Ex parte ad interim relief in terms of prayer clause b.
d) Any other relief order as this Hon’ble Court deems fit and proper.
5. The Petitioner who is a practising Advocate challenges the order dated 16.06.2023 passed by the learned Metropolitan Magistrate at Kurla, Mumbai in Case No. MISC/2994/2022, thereby directing the Police Officer of the Kurla Police Station to conduct an investigation under Section 202 of Cr.P.C. and to submit the report within four months. The impugned order was passed by the Magistrate at Kurla on a complaint filed by Respondent No. 1 against seven persons including the present Petitioner for the offence punishable under Sections 120A, 120B, 182, 211, 406, 383, 384, 499 and 506 read with Section 34 of the IPC.
6. Initially, Respondent No. 1 filed a complaint with Kurla Police Station, however, since no cognizance was taken of such complaint, he approached the Metropolitan Magistrate at Kurla by filing an Application under Section 156(3) of the Code of Criminal Procedure. However, by a pursis, Respondent No. 1 requested the concerned Magistrate to consider his Application under Section 156(3) of Cr.P.C. as a complaint filed under Section 190 of Cr.P.C.
7. The record shows that the said complaint was registered and kept for verification. On 02.05.2023, the Complainant filed an affidavit in lieu of verification of the complaint and then, the case was registered. Finally, on 16.06.2023, the learned Metropolitan Magistrate passed an order on the said complaint as under:-
“Order - Police Officer Kurla Police Station is hereby directed to conduct investigation u/s 202 Cr.P.C. and submit report within 04 months.
Adj. for u/s 202 report.”
8. The Petitioner approached this Court since she received a notice dated 15.09.2023 from the P.I. Kurla Police Station under Section 160 of Cr.P.C. thereby directing her to report to the concerned Police Station for the purpose of inquiry.
9. Mr. Diniz would submit that the Petitioner, who is an Advocate, appearing for and on behalf of the wife of Respondent No. 1 in the matrimonial matter, had no connection at all with the alleged act of extortion as claimed in the complaint. He submits that there are no allegations against the present Petitioner in the complaint filed before the Kurla Police Station while the Petitioner was acting as an Advocate of Respondent No. 2 i.e. the wife of Respondent No. 1.
10. Mr. Diniz would submit that the name of the Petitioner appears only when Respondent No. 1 filed a complaint/application under Section 156(3) of the Cr.P.C. He submits that the impugned order is illegal and not tenable since it contravenes the provisions of Section 202(1)(b) of the Cr.P.C. as the learned Magistrate failed to record the statement of the Complainant and his witnesses. He would further submit that on this count alone, the direction to conduct inquiry is bad in law.
11. Mr. Diniz would further submit that the Magistrate at Kurla had no territorial jurisdiction to entertain such a comp
