TANSUKHLAL PANNALAL JAINversusTHE STATE OF MAHARASHTRA AND ANR

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPLICATION NO. 1293 OF 2017

Mr.Tansukhlal Pannalal Jain,
Age: 48 years, Occ.: Business,
Residing at Uran Bazar Peth,
Taluka Uran, Dist. Raigad.                        …     Applicant.

       V/s.

1.    The State of Maharashtra
      Through the Mumbra Police
      Station, Dist. Thane.

2.    Mr.Rajaram Ragho Taware.
      Age: 52 years, Occ: Labour
      R/at Haware House,
      Near Chowdhary Chawl,
      Thakur Pada, Mumbra, Thane.                 …     Respondents.

                   _______________________________

Mr.Ambadas Chatuphale with W.F.Correia & Dillen D. Soeiro
for the Applicant.
Ms.Sangita Phad, APP for the Respondent-State.
Mr.Vijay Gharat with Mr.Vaibhav Jagdale for Respondent No.2.
Mr.Amol Suryawanshi, PSI, Mumbra Police Station is present.
                   _______________________________

              CORAM :            RANJITSINHA RAJA BHONSALE , J.
              RESERVED ON :           7th July 2026.
              PRONOUNCED ON :         11th September 2026
JUDGMENT :-
1)         By the present Application filed under section 482 of the Code

of Criminal Procedure, 1973 (now section 528 of the Bharatiya Nagarik

Suraksha Sanhita, 2023), the Applicant seeks to quash and set aside the


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order dated 1st October 2016 passed by the learned Judicial Magistrate,

First Class, Court No.1, Thane below Exhibit-1 in OMA No.824 of 2015

and also seeks to quash and set aside the FIR No.I-165 of 2017 dated 7 th

April 2017 registered pursuant to the order dated 1 st October 2016 with

Mumbra Police Station, Thane under sections 420, 406, 465, 467 and 34

of the Indian Penal Code (for short “IPC”).

2)        Heard Mr. Ambadas Chatuphale for the Applicant. Ms. Sangita

Phad, APP for the Respondent-State, and Mr. Vijay Gharat for Respondent

No.2.

3)        In the present case, the FIR has been registered on the basis of

the order dated 1st October 2016 passed by the Judicial Magistrate, First

Class, Court No.1, Thane passed in a private complaint filed by

Respondent No.2/ original Complainant under section 200 of the Code of

Criminal Procedure, 1973 (for short “Cr.P.C.”).

4)        The allegations in brief are as under:

4.1)      Accused No.1 visited original Complainant/ Respondent No.2 to

discuss a proposal for joint development of land bearing Survey No.59,

Hissa No.2 of village- Ballondkhare admeasuring about 31 gunthas on

50:50 percent basis. That, Respondent No.2. was induced to execute a

power of attorney in favour of accused Bhanudas Shivdas Naik.         That,

after the power of attorney dated 24 th May 2007 was prepared, Bhanudas



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Naik obtained signatures of Respondent No.2 and other co-owners. That,

accused No.1– Bhanudas Shivdas Naik did not give copies of the power of

attorney to Respondent No.2. That, accused No.1 asked Respondent No.2

to execute the agreement by luring them of getting a good price. Accused

No.1 along with the present Applicant have allegedly changed the

contents of the power of attorney and prepared fabricated documents by

attaching, removing and changing the last page of the power of attorney.

4.2)      The power of attorney was then attested by original accused

No.3, the Notary before whom Respondent No.2 and the witnesses

allegedly never appeared to sign. That, accused No.3 did not properly

notarize and register the power of attorney. That, accused No.1 and the

present Applicant allegedly used the forged and fabricated power of

attorney and transferred the land of Respondent No.2 to accused No.3.

That, accused No.4, the Talathi in collusion with the agents illegally

manipulated the record of the land for an unlawful profit and caused

wrongful loss to Respondent No.2.

4.3)        Mutation entries were carried out without following the legal

procedure. Photographs of few persons have been used on the power of

attorney. Accused Nos.5 and 6 were also beneficiaries as the Application

filed before them was rejected on sou moto basis without following the

due process of law. That, the Applicant executed a registered sale-deed in



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respect of the said land with vendors on 18 th May 2009. The accused

caused wrongful loss to Respondent No.2 and wrongful gain to

themselves by committing the offence.

5)        Mr.Chatuphale, learned Advocate appearing for the Applicant

submitted that,

5.1)      When the order dated 24th August 2015 was passed directing

the original Complainant to lead evidence under section 200 of Cr.P.C., it

was not appropriate for the Magistrate to then pass an order dated 1 st

October 2016 directing investigation under section 156(3) of Cr.P.C.

5.2)      The evidence was already recorded in compliance of the

provisions of section 200 of Cr.P.C., the issuance of process was postponed

under section 202 of Cr.P.C. and the police report was awaited.

5.3)      The inquiry under section 202 is only to assist the Court in

deciding whether to proceed further to issue process or to dismiss the

complaint.

5.4)      The order of investigation under section 156(3), which is

passed under Chapter XII of Cr.P.C. is required to be passed at pre-

cognizance stage. That, once the inquiry is ordered under section 202 of

Cr.P.C., then the stage is that of post-cognizance.     That, the Court ought

not to have gone back to order investigation under section 156(3) once

the course under section 202 of Cr.P.C. has been adopted.



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5.5)        Even on merits, Respondent No.2 has not explained the delay of

more than six years, nor has taken any steps to clear the title.    That, on

the ground of delay, it was a fit case for dismissal under section 203 of

Cr.P.C.

5.6)        The Court has failed to consider the law laid down by the

Hon’ble Supreme Court in the case of Lalita Kumari        v. Government of

U.P., reported in 2014 (2) SCC 1 in respect of conduct of preliminary

inquiry before registration of FIR in cases where there is abnormal

delay/laches in initiating criminal prosecution.

6)          Mr. Vijay Gharat, learned Advocate appearing for Respondent

No.2 submitted that:

6.1)        A prima facie case has been made out as alleged in the said

complaint and FIR. That, in case where serious allegations of fraud,

forgery etc. have been made out, this Court ought not to entertain such

matters under section 482 of Cr.P.C.

6.2)        Learned Advocate for Respondent No. 2 places reliance upon

the following judgments :

6.3)        The Hon’ble Supreme Court in the case of Accamma Sam Jacob

v. State of Karnataka, reported in 2026 SCC OnLine SC 585, has observed

that :

          “49.     This Court further observed that in cases where serious
          allegations of fraud, forgery, trespass and criminal conspiracy


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        affecting a large group of persons were involved, the High Court
        ought to have exhibited restraint while invoking its inherent
        jurisdiction under Section 482 CrPC.”


6.4)      The Hon’ble Supreme Court in the case of Mona Panwar v. High

Court of Judicature of Allahabad, reported in (2011) 3 SCC 496, has

observed that:

        “23. Normally, an order under Section 200 of the Code for
        examination of the complainant and his witnesses would not be
        passed because it consumes the valuable time of the Magistrate
        being vested in inquiring into the matter which primarily is the
        duty of the police to investigate. However, the practice which has
        developed over the years is that examination of the complainant
        and his witnesses under Section 200 of the Code would be directed
        by the Magistrate only when a case is found to be a serious one
        and not as a matter of routine course. If on a reading of a
        complaint the Magistrate finds that the allegations therein disclose
        a cognizable offence and forwarding of the complaint to the police
        for investigation under Section 156(3) of the Code will not be
        conducive to justice, he will be justified in adopting the course
        suggested in Section 200 of the Code.”


7)        The question which arises for consideration in the present

matter is whether once the Magistrate takes cognizance of the offence

and adopts the procedure under Chapter-XV of Cr.P.C., is it permissible in

law to resort back to the pre-cognizance stage and direct inquiry under

section 156(3) of Cr.P.C.

8)        Perused the entire record.

9)        A private complaint was filed on 19th August 2015 and was

registered as OMA No.824/2015 before the Magistrate, Thane. On 19 th



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August 2015, learned Magistrate passed the following order:

       “Read Complaint. Heard Learned Counsel for Complainant at
       length. Put up the case for orders on 24/8/2015:”

9.1)      On 24th August 2015, the learned Magistrate passed the

following order:

                              “ Order below Exh.1

       The present Application is filed by the Complainant stating that he
       has been cheated by the persons mentioned as accused in the
       application. Documents have been forged and fabricated by them.
       The record has been manipulated and mutation entry has been
       carried out without following legal procedure. A Power of Attorney
       is also manipulated and the land belonging to the complainant and
       witnesses is transferred in the name of one of the Accused. It is
       also stated that there was a proposal of development of land
       belonging to the complainant and co-owners.

       2) Heard learned Counsel for the Complainant at length. He read
       out many criminal provisions mentioned in Code of Criminal
       Procedure for a quite long time in presence of the Complainant
       and then argued on the matter. The learned Counsel for the
       Complainant was pressing that the report under Section 156(3) of
       Cr.P.C. should be called. But looking into the facts of the case, it
       appears prima facie that the nature of the dispute is civil one.
       Considering all the facts, I pass following order.

                                     ORDER

       Complainant to lead evidence as per Section 200 of Cr.P.C.”


9.2)      On 23rd September 2015, the evidence of the Complainant was

recorded which is at Exh.4 on the file of the learned Magistrate Court.

After recording the said deposition of the Complainant, the Magistrate

proceeded to call for report under section 202 of Cr.P.C. This was done by

an order dated 6th November 2015 which reads thus:



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                                     “ORDER

       “Perused Complaint and the documents. Heard the learned Counsel
       for the Complainant. My learned Predecessor by order dated
       24.8.2015 passed below Exh.1 ordered to lead the evidence u/s.
       200 of the Cr.P.C. Accordingly the Complainant has recorded
       verification. The accused are not residing with the local jurisdiction
       of this Court. Hence call for report u/s 202 from the concerned
       police station.”

The concerned Police Station filed its report on 6 th April 2016. As per the

report, no offence of any nature as alleged in the complaint is made out.



9.3)      After receipt of the report, the learned Magistrate passed order

dated 20th July 2016 calling for the say of the APP and Police Station

under section     156(3) of Cr.P.C.      On 1st October 2016, the learned

Magistrate passed the following order:

                                     “ORDER

       Perused the Exh.1 and the documents. Heard learned Advocate for
       the Applicant. It is alleged in the Exh.1 that the accused forged
       documents and that the accused have sold the property by means
       of Complainant's forged power of attorney. The matter thus
       requires detail investigation. Despite calling say of APP and P.S.
       Mumbra on 20.7.2016, no say is filed even though reminder was
       sent to police station. Hence the application is allowed
       u/sec.156(3) Cr.P.C. directing the concerned Police Station to
       investigate the case under Sec. 156(3) of Cr.P.C. immediately.”



9.4)      On the basis of the order dated 1 st October 2016, Mumbra

Police Station registered the FIR bearing No.I-165/2017 on 7 th April

2017 under sections 420, 406, 465, 467 and 34 of Indian Penal Code

(for short “IPC”) against six accused including the present Applicant


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as accused No.2.    It is this order dated 1st October 2016 and the

registration of FIR which are impugned in the present Application.


10)       Chapter XV of Cr.P.C. is titled as “Complaints to Magistrates”

and comprises of sections 200 to 203 of Cr.P.C. Section 200 provides for

examination of the Complainant, 201 provides for procedure to be

adopted by the Magistrate not competent to take cognizance of the case.

Section 202 provides for postponement of issuance of process and section

203 provides for dismissal of the Complain.

11)       Section 200 provides for examination of the Complainant.

When the Magistrate is taking cognizance of the offence on the complaint

made before him, the Magistrate is required to examine on oath the

Complainant and the witnesses present, if any, and the substance of such

examination is to be reduced in writing. Under section 202, the

Magistrate on receipt of the complaint of an offence which he is

authorized to take cognizance or which is made over to him under section

192 may, if he thinks fit, postpone the issue of process against the

accused, and either inquire into the case himself or direct an investigation

to be made by a police officer or by such other person as he thinks fit, for

the purpose of deciding whether or not there is sufficient ground for

proceeding in the matter.     In case the accused is residing at a place

beyond the area in which the said Magistrate exercises his jurisdiction, it


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would be mandatory for the Magistrate to conduct an inquiry. In the

inquiry conducted under of section 202(1), the Magistrate may, if he

deems fit, take evidence on oath under section 200 of Cr.P.C.         Under

section 203, after considering the statements on oath of the Complainant

and the witnesses, if any, and the result of the inquiry under section 202,

the Magistrate has two options i.e. either to dismiss the complaint under

section 203 in case he is of the opinion that no sufficient ground is

available for proceeding with the complaint or he can issue process under

section 204 of Cr.P.C.

12)       Section 203 of Cr.P.C. provides that, after considering the

statements on oath of the Complainant and the witnesses and the

resultant inquiry or investigation under section 202, if the Magistrate is of

the opinion that there is no sufficient ground for proceeding, he shall

dismiss the complaint after briefly recording the reasons for doing so. If

the complaint is not dismissed under section 203 of Cr.P.C., the

proceedings are then commenced before the Magistrate under Chapter

XVI of Cr.P.C. by issuing process under section 204. Under section 204, if

in the opinion of the Magistrate taking cognizance of the offence there is

sufficient ground for proceeding and the case is a summons case, the

Magistrate shall issue summons for attendance of the accused, and if the

case is a warrant case, he may issue warrant or, if he thinks fit, a



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summons, for causing the accused to be brought or to appear at a certain

time before the Magistrate or before the Court having jurisdiction.

13)       On the other hand, Chapter XII of Cr.P.C. deals with information

to the Police and their powers to investigate and comprises of sections

154 to 176. This Chapter deals with the information given to the Police

and the powers of the Police to investigate the complaints filed under

section 154(1) and (3) of Cr.P.C. This Chapter provides for procedure for

investigation by the Police Officer, the powers of Police Officers to

investigate, the manner in which the report is to be submitted, the power

to hold investigation or preliminary inquiry, power to require attendance

of witnesses, examination of witnesses, recording of confessions and

statements, medical examination and other procedural aspects of the

investigation.

14)       The Hon’ble Supreme Court in the case of Devarapally

Lakshminarayana Reddy v. V. Narayana Reddy , reported in (1976) 3 SCC

252 has observed that;

        “17. Section 156(3) occurs in Chapter XII, under the caption :
        “Information to the Police and their powers to investigate”; while
        Section 202 is in Chapter XV which bears the heading: “Of
        complaints to Magistrates”. The power to order police investigation
        under Section 156(3) is different from the power to direct
        investigation conferred by Section 202(1). The two operate in
        distinct spheres at different stages. The first is exercisable at the
        pre-cognizance stage, the second at the post-cognizance stage
        when the Magistrate is in seisin of the case. That is to say in the
        case of a complaint regarding the commission of a cognizable
        offence, the power under Section 156(3) can be invoked by the

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      Magistrate before he takes cognizance of the offence under Section
      190(1)(a). But if he once takes such cognizance and embarks upon
      the procedure embodied in Chapter XV, he is not competent to
      switch back to the pre-cognizance stage and avail of Section
      156(3). It may be noted further that an order made under sub-
      section (3) of Section 156, is in the nature of a peremptory
      reminder or intimation to the police to exercise their plenary
      powers of investigation under Section 156(1). Such an
      investigation embraces the entire continuous process which begins
      with the collection of evidence under Section 156 and ends with a
      report or charge-sheet under Section 173. On the other hand,
      Section 202 comes in at a stage when some evidence has been
      collected by the Magistrate in proceedings under Chapter XV, but
      the same is deemed insufficient to take a decision as to the next
      step in the prescribed procedure. In such a situation, the
      Magistrate is empowered under Section 202 to direct, within the
      limits circumscribed by that section an investigation “for the
      purpose of deciding whether or not there is sufficient ground for
      proceeding”. Thus the object of an investigation under Section 202
      is not to initiate a fresh case on police report but to assist the
      Magistrate in completing proceedings already instituted upon a
      complaint before him.

      18.     In the instant case the Magistrate did not apply his mind to
      the complaint for deciding whether or not there is sufficient
      ground for proceeding; but only for ordering an investigation
      under Section 156(3). He did not bring into motion the machinery
      of Chapter XV. He did not examine the complainant or his
      witnesses under Section 200 CrPC, which is the first step in the
      procedure prescribed under that chapter. The question of taking
      the next step of that procedure envisaged in Section 202 did not
      arise. Instead of taking cognizance of the offence, he has, in the
      exercise of his discretion, sent the complaint for investigation by
      police under Section 156.

      19.     This being the position, Section 202(1), first proviso was
      not attracted. Indeed, it is not necessary for the decision of this
      case to express any final opinion on the ambit and scope of the
      first proviso to Section 202(1) of the Code of 1973. Suffice it to
      say, the stage at which Section 202 could become operative was
      never reached in this case. We have therefore in keeping with the
      well established practice of the Court, decided only that much
      which was essential for the disposal of this appeal, and no more.
                                                      (Emphasis Supplied)




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15)      The Hon’ble Supreme Court in the case of National Bank of

Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488 has observed that;

        “8.      We find no error in the view taken by the High Court that
        the CJM, Ahmednagar had not carried out any enquiry or ordered
        investigation as contemplated under Section 202 CrPC before
        issuing the process, considering the fact that the respondent is a
        resident of District Dakshin Kannada, which does not fall within
        the jurisdiction of the CJM, Ahmednagar. It was, therefore,
        incumbent upon him to carry out an enquiry or order investigation
        as contemplated under Section 202 CrPC before issuing the
        process.
        9.       The duty of a Magistrate receiving a complaint is set out in
        Section 202 CrPC and there is an obligation on the Magistrate to
        find out if there is any matter which calls for investigation by a
        criminal court. The scope of enquiry under this section is
        restricted only to find out the truth or otherwise of the allegations
        made in the complaint in order to determine whether process has
        to be issued or not. Investigation under Section 202 CrPC is
        different from the investigation contemplated in Section 156 as it
        is only for holding the Magistrate to decide whether or not there is
        sufficient ground for him to proceed further. The scope of enquiry
        under Section 202 CrPC is, therefore, limited to the ascertainment
        of truth or falsehood of the allegations made in the complaint:
             (i) on the materials placed by the complainant before the
             court;
             (ii) for the limited purpose of finding out whether a prima
             facie case for issue of process has been made out; and
             (iii) for deciding the question purely from the point of view of
             the complainant without at all adverting to any defence that
             the accused may have.”


16)      This Court in the case of Pandurang Shripati Magadum Vs

Rajaram Ragho Taware in Criminal Writ Petition No. 3420 OF 2017

decided on 24th February 2025, observed that :

        “12. In view of the aforesaid settled position of law, we have
        cautiously looked into the subject complaint in the light of the
        Orders passed therein by the learned Magistrates and as
        reproduced above. On such exercise being carried, we noticed that
        the Orders dated 20.07.2015, 24.08.2015 and 06.11.2015 were

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        passed by different Magistrates. Similarly, the Orders dated
        20.07.2016 and 01.10.2016 were passed by different Magistrates.
        From all this noted above, it is evident that, since inception the
        erstwhile learned Magistrates were intending to proceed with the
        complaint under ‘Chapter XV’ and not under ‘Chapter XII’ of Cr.P.C.
        This approach of the learned Magistrate is appropriate in the light
        of the facts and circumstances, as the said learned Magistrates
        wanted to ascertain as to whether there is substance in the
        complaint to proceed further with the case or not, because the A4,
        A5 and A6-Petitioner were in public service. Secondly, the accused
        were not residing within the local jurisdiction of the said
        Magistrates’ Court. Therefore, by taking judicial notice of the
        allegations in the complaint i.e., taking cognizance of the
        complaint, the first learned Magistrate perused the complaint,
        heard the counsel for the complainant and adjourned the matter
        to 24.08.2015 for passing the Order. Accordingly, the Order dated
        24.08.2015 was passed to lead the evidence u/S.200. Thereafter,
        the     subsequent     learned     Magistrate     recorded      the
        verification/examination u/S.200 and passed the Order dated
        06.11.2015 and called for the report u/S.202. of Cr.P.C.
        13.    However, it appears that, meanwhile, no report was
        submitted. It also appears that the learned Magistrate was not
        properly assisted in the matter or informed about the Orders
        previously passed. Hence, said learned Magistrate passed the
        Orders dated 20.07.2016 and 01.10.2016, directing investigation
        u/S.156 (3) of Cr.P.C., which finally led to registration of the
        impugned F.I.R. This is wholly in contrast to the scheme of the
        Cr.PC. which, in the above circumstances, provides for
        inquiry/investigation under Section 202 only and not
        investigation under Section 156 (3) thereof. Thus, on this count
        alone the impugned F.I.R. is liable to be quashed.”


17)      The Hon’ble Supreme Court in the case of Sadiq B.

Hanchinmani v. State of Karnataka, 2025 SCC OnLine SC 2334, has

observed that:

        “37. At this juncture, it would be apposite to refer to the position
        of law enunciated in Madhao v. State of Maharashtra, (2013) 5
        SCC 615 : (2013) 4 SCC (Cri) 141, wherein it was held that:
           ‘18. When a Magistrate receives a complaint he is not bound
           to take cognizance if the facts alleged in the complaint disclose


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         the commission of an offence. The Magistrate has discretion in
         the matter. If on a reading of the complaint, he finds that the
         allegations therein disclose a cognizable offence and the
         forwarding of the complaint to the police for investigation
         under Section 156(3) will be conducive to justice and save the
         valuable time of the Magistrate from being wasted in
         enquiring into a matter which was primarily the duty of the
         police to investigate, he will be justified in adopting that
         course as an alternative to taking cognizance of the offence
         itself. As said earlier, in the case of a complaint regarding the
         commission of cognizable offence, the power under Section
         156(3) can be invoked by the Magistrate before he takes
         cognizance of the offence under Section 190(1)(a). However,
         if he once takes such cognizance and embarks upon the
         procedure embodied in Chapter XV, he is not competent to
         revert back to the pre-cognizance stage and avail of Section
         156(3).’
                                                   (emphasis supplied)
      38. In the background of the factual position, the JMFC's Order
      dated 18.01.2018 cannot be faulted. Enough material is available
      to justify a full-fledged investigation by the police. The JMFC, to
      our mind, had rightly referred the matter for investigation to the
      police since a prima facie case stood made out against the
      accused, in view of the material that was available with the JMFC.
      In Ramdev Food Products Private Limited v. State of Gujarat,
      (2015) 6 SCC 439 : (2015) 3 SCC (Cri) 192, three learned Judges
      of this Court opined:
         ‘13. We may first deal with the question as to whether the
         Magistrate ought to have proceeded under Section 156(3) or
         was justified in proceeding under Section 202(1) and what are
         the parameters for exercise of power under the two provisions.
                       Xxx
         22. Thus, we answer the first question by holding that:
         22.1. The direction under Section 156(3) is to be issued, only
         after application of mind by the Magistrate. When the
         Magistrate does not take cognizance and does not find it
         necessary to postpone the issuance of process and finds a case
         made out to proceed forthwith, direction under the said
         provision is issued. In other words, where on account of
         credibility of information available, or weighing the interest of
         justice it is considered appropriate to straightaway direct
         investigation, such a direction is issued.
         22.2. The cases where Magistrate takes cognizance and

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           postpones issuance of process are cases where the Magistrate
           has yet to determine “existence of sufficient ground to
           proceed”. Category of cases falling under para 120.6 in Lalita
           Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014)
           1 SCC (Cri) 524] may fall under Section 202.
           22.3. Subject to these broad guidelines available from the
           scheme of the Code, exercise of discretion by the Magistrate is
           guided by interest of justice from case to case.
                   xxx
        38. In Devarapalli Lakshminarayana Reddy v. V. Narayana
        Reddy [(1976) 3 SCC 252 : National Bank of Oman v. Barakara
        Abdul Aziz [(2013) 2 SCC 488 : Madhao v. State of Maharashtra
        [(2013) 5 SCC 615 : Rameshbhai Pandurao Hedau v. State of
        Gujarat [(2010) 4 SCC 185 : the scheme of Sections 156(3) and
        202 has been discussed. It was observed that power under Section
        156(3) can be invoked by the Magistrate before taking cognizance
        and was in the nature of pre-emptory reminder or intimation to
        the police to exercise its plenary power of investigation beginning
        with Section 156 and ending with report or charge-sheet under
        Section 173. On the other hand, Section 202 applies at post-
        cognizance stage and the direction for investigation was for the
        purpose of deciding whether there was sufficient ground to
        proceed.’
                                              (emphasis supplied)


18)      Perusal of the orders dated 19 th August 2015, 24th August 2015,

deposition of the Complainant dated 23 rd September 2015 and the order

dated 6th November 2015 are clearly indicative of the fact that the Court

took cognizance of the complaint and proceeded with the complaint

under Chapter XV of Cr.P.C. and not under Chapter XII of the Cr.P.C. In

the present case, it appears that the order dated 1 st October 2016 by

which it was directed for investigation to be conducted under section

156(3) of Cr.P.C is not in line with the object and scheme as provided



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under the Cr.P.C. It is, in fact, contrary to the provisions of the Cr.P.C.

19)          In the present case, there is clear procedural illegality in

passing the order dated 1st October 2016 directing investigation under

section 156(3) of Cr.P.C. An FIR cannot be registered or sustained on the

basis of an untenable or illegal order.

20)       Perusal of the orders dated 24 th August 2015, 6th November

2015 and 20th July 2016 indicates that by passing these orders the Court

took cognizance of the matter and proceeded with the matter as it

thought appropriate to adopt the procedure under Chapter XV and

sections 200 to 203 of Cr.P.C. The learned Magistrate took cognizance

and postponed the issuance of process, as the Magistrate was yet to

determine the existence of sufficient grounds to proceed with the matter.

If on reading the complaint, the Magistrate was of the opinion that a

cognizable offence is made out, the order under section 156(3) would

have been passed. That is not the situation in the present case. In the

present case, after the cognizance was taken, orders were passed so as to

enable the Court to ascertain as to whether there was any material

substance in the complaint to proceed further in the matter.              Some

accused were not residing within the local jurisdiction of the Court. The

Court under section 202 of Cr.PC postponed the issuance of process and

directed inquiry/ investigation by the Officer for the purpose of deciding



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whether or not there is sufficient ground for proceeding with the matter.

21)       As observed hereinbefore the inquiry and investigation under

Section 202 of the CrPC is to see if there is material available, if the

allegation make out a prima facie case. By passing the said order, the

Court had taken cognizance of the complaint, heard the complainant,

recorded evidence, and passed the order. The order dated 24 th August

2015 is passed for leading evidence under section 200 which was

recorded on 23rd September 2015. The Court, after recording of evidence

and examination of witnesses under section 200, called for a report under

section 202 of Cr.P.C.

22)       The Cr.P.C. does not provide for reverting back to a stage of

section 156(3) after the Complainant has been examined and inquiry has

been conducted under section 202(1) of Cr.P.C. One must remember that

the action under section 156(3) of Cr.PC, is taken by the Magistrate due

to the powers vested in the Magistrate by virtue of Section 190 of Cr.PC.

Section 190 deals with cognizance of offences by Magistrate and forms

part of Chapter XIV which deals with conditions necessary for initiation of

proceedings. Section 156 deals with the power of police officer to

investigate cognizable cases. The powers under section 156(3) is in the

nature of supervising and directing the police officers to investigate a

cognizable case and comes under chapter XII which primarily deals with



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the information to the Police and their power to investigate. The inquiry

under section 202(1) of Cr.PC is a limited inquiry or investigation only for

the purpose to ascertain and decide whether or not there is sufficient

ground for proceeding in the matter. Under the Cr.P.C., an inquiry or

investigation under section 202 is provided for and only in respect of the

what is stated in Section 202(1) of the CrPC. The scope of the

inquiry/investigation under Section 202(1) is limited and restricted to

ascertaining if there is any merit/truth in the allegations and to assist at a

conclusion whether process is required to be issued or not. It is pertinent

to note that, it is not the case of the Complainant that he had filed

complaint under section 154(1) of Cr.P.C. and on refusal on the part of

the Officer In-charge of the police station to record the said information

he had approached the concerned Superintendent of Police under section

154(3) and that no action was taken. It is pertinent to note and keep in

mind that, there is difference in the investigation under section 156(3) of

Cr.P.C. and section 202 of Cr.P.C.

23)       In an inquiry under section 202 of Cr.PC there is on record

some evidence and what section 202 inquiry does is to ascertain whether

there is sufficient evidence to proceed further. Direction under section

156(3) are issued when the Magistrate is of the opinion that, there is

credible material available, there is no reason to postpone the issuance of



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process and an investigation can be ordered immediately. If the

Magistrate is of the opinion that, there is a need to find out if there exists

sufficient ground to proceed. In this view, it would not be permissible for

a Magistrate to revert back to the pre-cognizance stage and order an

investigation under section 156(3) of Cr.PC, when cognizance is taken

under section 202 of Cr.PC. One must also keep in mind that a proceeding

under section 156(3) culminates in a report/chargesheet under section

173 of Cr.PC and an enquiry under section 202 of Cr.PC culminates under

section 203 or 204 of Cr.PC. In these facts, continuation of the said FIR

would be an abuse of the process of law.

24)       The question is answered accordingly.             Considering the

aforesaid facts and provisions of Cr.P.C. as discussed hereinabove, I am of

the view that learned Magistrate has misdirected himself in passing the

order dated 1st October 2016.          The resultant registration of FIR

No.165/2017 dated 7th April 2017 is also therefore untenable.        The FIR

could not have been registered. In view of the aforesaid discussion, the

order dated 1st October 2016 and the FIR are liable to be quashed and are

hereby quashed and set aside.

25)       In view of the above, Petition is allowed in terms of prayer

clause (a).

26)       The matter is remanded back to the Judicial Magistrate, First



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Class, 1st Court, Thane to proceed to consider the report dated 6 th April

2016 submitted by the Investigating Officer on 7 th April 2016 and decide

the matter in accordance with law. Considering that the complaint

pertains to the year 2015 this Court is sure that the Judicial Magistrate,

First Class, 1st Court, Thane will take up the matter on a priority basis and

as expeditiously as possible.



                          (RANJITSINHA RAJA BHONSALE, J.)




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