KIRAN PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned Senior Advocate Mr. Kulkarni for the Applicants - Advocate for proposed Accused, learned Senior Advocate Mr. Mundargi for Respondent No.2 / Complainant and learned APP. The legality of the order dtd. 30/12/2023 passed by the Court of Additional Sessions Judge, Thane is challenged. The effect of this order is as follows :-

(2.) There is a dispute amongst both sides as to whether offence is prima facie disclosed and whether it need to be investigated under Sec. 156(3) of the Cr.P.C. However, there is consensus amongst both the Senior Advocates about not issuing the directions to the learned Magistrate to send the matter for investigation under Sec. 156(3) of Cr.P.C. Even learned Senior Advocate Mr. Mundargi in all his fairness has placed reliance on the observations in Mikkilineni Venkateshwari and others vs. Tummula Nirmala and Another,2001 SCC OnLine Andhra Pradesh 1578. Similar issue was raised that is to say whether Sessions Judge can direct the learned Magistrate to take a particular course of action. The provisions of Sec. 398 of the Cr.P.C. are also referred. In paragraph No.8 it is observed :-

(3.) In nutshell the principle is Sessions Court cannot direct Magistrate to pass a particular order only. The issue has to be left open to the learned Magistrate and he can pass an appropriate order on the basis of observations of the Revisional Court. So that part of the order from the operative part of the order needs to be set aside. Observations in the impugned order