Mahesh Ananda Tike vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 8741 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                   CRIMINAL WRIT PETITION NO. 740 OF 2017

            Mahesh Ananda Tike,
            aged about 38 years, Occ. Service,
            City Survey Officer, R/o. Borivali,
            Chikuwadi, Mumbai         ......                               PETITIONER

                                 ...VERSUS...

 1.         State of Maharashtra,
            through Police Station Officer,
            Police Station, Bhandara.

 2.      Gopichand Tulsiram Kore,
         aged about 64 years, Occ. Retired,
         R/o. Plot No. 11, Samata Nagar,
         Phase-I, Mendhe Road, Bhandara.......                              RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri Masood Shareef, Advocate for Petitioner
 Ms. M.H.Deshmukh, APP for Respondent No.1
 Shri H.S.Rahandale, Advocate for Respondent No.2
 -------------------------------------------------------------------------------------------
                           CORAM: R. K. DESHPANDE AND
                                        M.G.GIRATKAR, JJ.
                                           th
                           Date       : 15     NOVEMBER, 2017 .

 JUDGMENT (P.C.)

Rule made returnable forthwith.

Heard finally by consent of the learned counsels

appearing for the parties.

2] On 03.10.2017, this Court passed an oder as

under;

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                           "Heard.

In view of amendment to Section 156(3) of the Code of Criminal Procedure, dated 30th August, 2016, we are of the view that the matter can be disposed of by the next date as the impugned order was issued by the Magistrate, dt. 3.7.2017 after the amendment without verifying the sanction order on record. State over to 1.11.2017 for disposal. Interim order, if any, to continue till disposal of the matter."

3] It is apparent that the amendment came into

force on 30.08.2016 and thereafter the Court has passed an

order directing investigation under Section 156(3) of Criminal

Procedure Code. The Court has failed to look into the

proviso which is by way of the Maharashtra Amendment,

which prohibits the Magistrate to pass an order of

investigation, except upon grant of sanction under Section

197 of the Code or under any law for the time being in force.

It is not in dispute that no such sanction is placed on record.

The order cannot, therefore, be sustained and it will have to

be set aside with an order of remand.

4] In the result, writ petition is allowed. The order

dated 03.07.2017 passed by the learned Judicial Magistrate,

First Class Court No.1, Bhandara, directing an investigation

under Section 156 (3) of the Code of Criminal Procedure,

3 criwp740.17.odt

operating against the petitioner, who is a public servant, is

quashed and set aside. The Magistrate is at liberty to

proceed further in the matter after compliance of the proviso

to Section 156 (3) of the Code of Criminal Procedure.

Rule is made absolute in above terms. No order

as to costs.

                                JUDGE                       JUDGE


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