The Magistrate has discretion under Section 156(3) of the Cr.P.C. to determine if a prima facie case exists for police investigation, requiring sufficient evidence from the complainant.

JUDGMENT :

[Y. G. KHOBRAGADE, J.]

1. Rule. Rule made returnable forthwith and with the consent of both the parties it is heard finally.

2. By the present Petition under Article 227 of the Constitution of India, the Petitioner challenged the order dated 03.04.2024 passed by the learned Judicial Magistrate First Class, Pathardi, District Ahmednagar, in Criminal (O) M.A. No.27 of 2024, whereby prayer of the Petitioner for issuance of directions against the Police Station Officer, Pathardi Police Station, District Ahmednagar, to register F.I.R./ to conduct investigation has been declined.

3. Heard at length Mr. Hange, the learned counsel for the Petitioner and the learned APP for State.

4. Mr. Hange, the learned counsel appearing for the Petitioner canvassed that, the Petitioner filed a complaint Criminal (O) M.A. No.27 of 2024 and stated that, series of crimes are registered as against the accused No.1 Shri Balu @ Balasaheb Govind Khedkar and his associates as under:-

5. It is further canvassed that, on 14.01.2024, at about 5.30 p.m., when the petitioner was returning from Ahmednagar and reached near Mali Babhulgaon, Nagar Road, at that time, the accused Shri Dashrath Madhav Khedkar with his four unknown associates blocked his way, assaulted him with hockey stick and thrown chilli powder in his eyes and forcefully took out Rs.50,000/-, i.e. 100 currency notes of Rs.500/ from his pocket. The Accused also issued a life threat, saying that if the petitioner lodged a report about the incident, he would be killed. The accused then fled from the spot. The said incident was witnessed by Shri Yogesh Bapurao Bade and Shri Jagdish Ankush Khedkar. Therefore, the Petitioner has made out a prima-facie case for taking cognizance for cognizable offences. However, the learned J.M.F.C., failed to consider the facts and circumstances of the case and, instead of treating the complaint under Section 200 of Cr.P.C., could have passed an order under Section 156(3) of the Code of Criminal Procedure. However, the learned J.M.F.C., treated the complaint u/s 200 of Cri. P.C., hence, impugned order is illegal bad in law.

6. According to the learned counsel for the petitioner, when the petitioner specifically prayed for order under Section 156(3) of Cri.P.C., therefore, it is mandatory on the part of the learned Magistrate either to grant the prayer for further investigation or to reject the said prayer. However, the learned Magistrate is not empowered to convert the complaint u/s 156(3) of the Cri.P.C. into a chapter case, i.e. a private complaint u/s 200 of Cri. P. C.. However, the learned Magistrate passed the impugned order and directed the petitioner to give his statement on oath. Therefore, the impugned order is illegal and bad in law, hence, prayed for quash and set aside the same.

7. To buttress these submissions, the learned counsel for the Petitioner placed reliance on Order dated 05.05.2020, passed by this Court (Coram: R. G. Avachat, J.) in Criminal Writ Petition No.1808 of 2018, Dr. Mamta Mahindra Kabra Vs. State of Maharashtra, and order dated 17.03.2023 passed by this Court (Coram: Kishore C. Sant, J.) in Criminal Writ Petition No. 1641 of 2022, Dattatray Raghunath Kale Vs. The State of Maharashtra and others, wherein, it is held that, the Petitioner had sought an order under Section 156(3) of Cr.P.C., therefore, the learned Magistrate was not justified in passing the order directing the placement of the matter for recording Petitioner’s statement on oath under Chapter XV (complaints to Magistrates) of Cr.P.C.

8. Per contra, the learned APP submits that, the petitioner made allegations about committing robbery by snatching amount of Rs. 50,000/-from his pocket after throwing chilli powder in his eyes, issuance of life threat and witnessing said