MOHAMMED ABDUL SHAKUR SHAIKH AND OTHERSversusTHE STATE OF MAHARASHTRA AND ANOTHER

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

              CRIMINAL WRIT PETITION NO. 118 OF 2023

Mohammad Abdul Shakur Shaikh
& others                                                .. Petitioners

versus

The State of Maharashtra & another                      .. Respondents

Mr. S. S. Jadhavar, Advocate for the Petitioners.
Mr. S. G. Joshi, APP for the State.
Mr. G. R. Syed, Advocate for Respondent No. 2.

                                    CORAM : R. M. JOSHI, J.
                                    DATE : 22nd JUNE, 2026.
PER COURT :


1.       The issue involved in the present petition is as to whether the

Petitioners who are accused in Crime No. 03/2014 have locus standi

to   raise   any   objection   to    the    protest   petition   filed   by   the

Respondent/original informant and whether the learned Magistrate

was required to hear them while deciding the protest petition.



2.     Facts which led to filing of this petition can be narrated in brief

as under :-

       According to the Petitioners, at the instance of Respondent

offence came to be registered vide C.R. No. 205/2010 with Azad

Nagar Police Station, Dhule, alleging appointments of employees
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being done by Management/accused by fabricating documents. After

due investigation charge-sheet is filed before competent Court and

charge also came to be framed against accused in RCC No.

202/2011. Thereafter, an application was moved vide Exhibit 45 by

informant for recovery of certain documents.      This application was

allowed by Magistrate by order dated 21.09.2019. The challenge was

raised to the said order in Writ Petition bearing No. 1730/2019. Now,

the said petition is disposed of by order dated 13.11.2025 permitting

the informant to take recourse of Section 91 of Code of Criminal

Procedure.



3.    It is the case of Petitioners that without disclosing previous

First Information Report, Respondent made complaint to Magistrate

being No. 937/2013. Investigation was directed by Magistrate in the

said complaint under Section 156(3) of Code of Criminal Procedure.

Accordingly, Crime No. 3/2014 was registered by police.        The said

First Information Report is sought to be quashed by filing Criminal

Application No. 500/2014, which is pending before the Court and

further proceedings were stayed.     Since ‘C’ summary was filed by

police, application came to be withdrawn on 23.08.2018.             It is

thereafter,   Respondent/informant    filed   present   petition   before
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Magistrate and by passing impugned order dated 21.09.2019,

Magistrate directed further investigation into the crime. Against this

order, present petition is filed.



4.    During the course of hearing, learned Counsel for the

Petitioners sought to make submission on merits with regard to the

tenability of the First Information Report on the ground that

previously another report came to be filed and hence subsequent

report is not maintainable. Apart from this, it is his submission that

the learned Magistrate ought not to have entertained the protest

petition and, in any case, in view of the facts of the case, could not

have directed further investigation. It is his submission that since ‘C’

summary is filed by the investigating agency, right is created in

favour of the Petitioners/accused and since the issue with regard to

acceptance or otherwise of the said ‘C’ summary was raised in the

protest petition, the accused had a right to cause appearance so also

right of hearing and non providing them of this opportunity would

defeat principles of natural justice. It is his submission that unlike

private complaint wherein the accused is not permitted to appear

before the Magistrate before issuance of process, here in this case, on

filing of the First Information Report, Petitioners have right not only
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to challenge the First Information Report but also to appear in the

proceeding of protest petition.



5.    Learned Counsel for the Respondent who had raised issue of

maintainability of the present petition as well as has taken exception

to the locus standi of the Petitioners/accused seeking hearing in the

protest petition, submits that it is well settled position of law that till

process is issued against the accused, he has no say before the

criminal Court. Here in this case, he drew attention of the Court to

the fact that pursuant to registration of First Investigation Report,

investigation was conducted and ‘C’ summary is filed. According to

him, it is a right of the informant to take exception to ‘C’ summary

and accordingly, protest petition came to be filed before the

Magistrate.    It is his submission that the order passed by the

Magistrate of conducting further investigation is not without

jurisdiction. In any case, according to him, the Petitioners cannot be

heard even in this petition leave apart having any right of hearing in

the protest petition.



6.    The facts as recorded above indicate that the provisions of Code

of Criminal Procedure have application to the present case. Chapter
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XI of Code of Criminal Procedure deals with the procedure from the

stage of lodging of First Information Report till filing of charge-sheet.

This scheme does not contemplate hearing of accused at any stage till

issuance of process by the Magistrate.     The position of law in this

regard is fairly settled to say that the accused would not get any locus

standi or say till the process is issued against him. In this regard, it

would be material to take note of the judgment of the Hon’ble

Supreme Court in case of Major General A. S. Gauraya & another vs.

S. N. Thakur & Another, (1986) 2 SCC 709, wherein while dealing

with the provisions of Code of Criminal Procedure, it is held that the

Magistrate has no inherent power to entertain the application or

objection from any person other than the victim/complainant/injured

person or relatives of deceased. The Magistrate, therefore, would not

have power to entertain the accused till process is issued against

him.   In case of Bhagwat Singh vs. Commissioner of Police and

another, 1985 AIR 1285, it is held that extra ordinary jurisdiction of

the High Court and Supreme Court cannot be entertained by the

Magistrate.   The Magistrate is bound by the provisions of Code of

Criminal Procedure and in absence of any such provision of

entertaining the accused at any stage prior to issuance of process,

the Magistrate was not empowered to entertain any objection from
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accused to the protest petition filed by the informant. In such case,

there was no reason for the Magistrate to accord any opportunity to

the Petitioners/accused of hearing.    Moreover, once the Petitioners

have no right of hearing, at this stage, question of them being

permitted to challenge the order passed by the Magistrate of carrying

out further investigation does not arise. In any case, the Magistrate

was within his jurisdiction under Section 173(8) of Code of Criminal

Procedure to direct further investigation and exercise of such

jurisdiction cannot be entertained and interfered in the petition.



7.    Needless to say that the power of Magistrate under Code cannot

be equated with the power of High Court in a petition/application for

quashment of First Information Report.       Thus, merely because it

would be open for an accused to seek quashment of First Information

Report, he cannot be allowed to cause interference in the proceedings

before Magistrate till issuance of process/summons against him.



8.    As a result of above discussion, the issue is required to be

answered in negative. Since the said issue is answered in negative,

the question of entertaining the petition further and going into the
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case sought to be made out on merit by the Petitioner, does not arise.

Hence, the petition stands dismissed.



9.    Pending application, if any, does not survive and stands

disposed of.



                                                ( R. M. JOSHI, J.)

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