Kishor Changdeo Gadhave And ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 13548 Bom

                                                                              WP.1875.2022.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

            CRIMINAL WRIT PETITION NO. 1875 OF 2022

Kishor Changdeo Gadhave and Anr                            ...Petitioners

     Versus

The State of Maharashtra & Anr                             ...Respondents

                          ...

Mr. V.D. Sapkal, Senior Advocate i/by Mr. R.A. Tambe, Advocate for the Petitioners.

Mr. S.P. Sonpawale, APP, for the Respondent - State.

...

                                                CORAM      : R.G. AVACHAT &
                                                             R.M. JOSHI, JJ

                                                DATE       : DECEMBER 23, 2022.

PER COURT :

1. Heard learned Senior Counsel appearing for the

Petitioners. According to him, learned Magistrate could

not have passed order directing registration of crime

by invoking Section 156(3) of Code of Criminal

Procedure. In support of his contention, he took this

Court to the relevant provision of The Transplantation

of Human Organs Act, 1994, and in particular, Section

22 thereof which provides for cognizance of offence,

which cannot be taken by the Court except on the

complaint made by the appropriate authority or any

person after giving notice of not less than 60 days in

WP.1875.2022.doc

a prescribed manner to the appropriate authority. He

also adverted attention of this Court to the judgment

of the Hon'ble the Apex Court in case of Jeewan Kumar

Raut and Another Vs. Central Bureau of Investigation

reported in (2009) 7 SCC 526, wherein it is held in

paragraph 26 that if a special statute lays down a

procedures, the ones laid down under the general

statues shall not be followed. Thus, it is his

contention that no crime can be registered by police

pursuant to the impugned directions.

2. Prima facie consideration of relevant

provisions of the act and judgment cited supra,

indicates that arguable case is made by the Petitioners

in respect of his challenge to the order passed by the

Magistrate directing recording of the crime by invoking

Section 156(3) of Cr.P.C. We are, therefore, inclined

to issue notice to the Respondents, returnable on 27 th

January, 2023.

3. Learned APP waives notice for Respondent -

State.

4. There shall be interim stay in terms of prayer

WP.1875.2022.doc

clause 'C'.

5. All concerned shall act upon an authenticated

copy of this order.

(R.M. JOSHI, J.) (R.G. AVACHAT, J.) Malani