ANNASAHEB BABURAO TEKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The challenge in this criminal writ petition under Articles 226 and 227 of the Constitution of India read with sec. 482 of the Code of Criminal Procedure, 1973 (hereafter 'the Cr.P.C.', for short) is to the legality and validity of a notice dtd. 9/3/2021 issued by the Executive Magistrate, Kopargaon, respondent no.2, under sec. 107 of the Cr.P.C. in connection with Chapter VIII Case No. 288 of 2021. The only ground on which the petitioners have prayed for quashing and/or setting aside the impugned notice dtd. 9/3/2021 is that, no separate order has been recorded by the respondent no. 2 as is statutorily ordained by sec. 111 of the Cr.P.C.

(2.) Mr. Gaware, learned advocate representing the petitioners while referring to the impugned notice and questioning it on the ground noticed above, submits that an order under sec. 111 of the Cr.P.C is a pre-condition for issuance of a notice under sec. 107 thereof; and absence of such an order in the file renders the proceedings initiated by the respondent no. 2 vitiated.

(3.) It is also submitted by Mr. Gaware that the issue raised in this writ petition is no longer res-integra. Relying on the decision of a Full Bench of this Court reported in 2019 (5) Mh.L.J. 884 (Farhan Nasir Khan Vs. State of Maharashtra and another), he submits that since the notice dtd. 9/3/2021 issued by the respondent no. 2 was not accompanied by the order passed under sec. 111 thereof, such an action is in the teeth of the opinion rendered by the Full Bench in Farhan Nasir Khan (supra) and, therefore, the petitioners are entitled to the relief as claimed in the petition.