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Bombay High Court
Anil Umrao Gote vs Kishor Kashinath Patil And Others on 19 December, 2025
2025:BHC-AUG:37468
(1) Cri.Appln-3033-2025&Cri.WP-1026-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1026 OF 2025
Kishor s/o. Kashinath Patil
Age: 41 years, Occu: Service,
R/o. B-303, Platinum Liviano,
Plot No.58 & 59, Sector 35,
Navi Mumbai. ...PETITIONER
VERSUS
1] The State of Maharashtra
Through Superintendent of Police,
Dhule.
2] Police Inspector,
Dhule City Police Station, Dhule.
3] Anil s/o. Umrao Gote
Age: 78 years, Occu: Social Service,
R/o. 1321, Galli No.04, Dhule,
Tq. & Dist. Dhule. ...RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 3033 OF 2025
IN
CRIMINAL WRIT PETITION NO.1026 OF 2025
Anil s/o. Umrao Gote
Age: 78 years, Occu: Social Service,
R/o. 1321, Galli No.04, Dhule,
Tq. & Dist. Dhule. ...APPLICANT
(2) Cri.Appln-3033-2025&Cri.WP-1026-2025
VERSUS
1] Kishor s/o. Kashinath Patil
Age: 41 years, Occu: Service,
R/o. B-303, Platinum Liviano,
Plot No.58 & 59, Sector 35,
Navi Mumbai.
2] The State of Maharashtra
Through Secretary, Home Department,
Mantralaya Mumbai- 400 032.
3] The Investigating Officer,
Dhule Police Station,
Tq. & Dist. Dhule. ...RESPONDENTS
.....
Mr. Sanjeeva B. Deshpande, Senior Advocate i/by Mr. Pratik Bhosle,
Advocates for the Petitioner in WP and Respondent No.1 in Criminal
Application.
Mr. Mahesh V. Ghatge, Advocate for the Applicant in Criminal
Application and Respondent No.3 in WP.
Smt. M. N. Ghanekar, APP for Respondent-State.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 6th NOVEMBER 2025.
PRONOUNCED ON : 19th DECEMBER 2025.
ORDER :
-
1. Heard Mr. Deshpande, the learned Senior Advocate for Petitioner
(3) Cri.Appln-3033-2025&Cri.WP-1026-2025
in Writ Petition and Respondent No.1 in Criminal Application, Mr.
Ghatge, the learned Advocate for the Applicant in Criminal Application
and Respondent No.3 in Writ Petition, and Ms. Ghanekar, the learned
APP for Respondent-State.
2. This Writ Petition is filed challenging Judgment and Order dated
8th July 2025, passed by the learned Additional Sessions Judge-5, Dhule,
in Criminal Revision Application No. 33 of 2025, whereby the learned
Additional Sessions Judge partly allowed the Revision Application and
remanded the matter back to the Court of learned Chief Judicial
Magistrate for fresh inquiry. Further, it is prayed that the investigation in
Criminal NC No. 264 of 2025 registered with Dhule City Police Station
be stayed.
3. This Court, by order dated 29 th July 2025, had issued notice to the
respondents and passed an interim order directing stay on investigation.
Criminal Application No.3033 of 2025 is, therefore, filed by Respondent
No.3 for vacating the interim relief. In view of that, Criminal Writ
(4) Cri.Appln-3033-2025&Cri.WP-1026-2025
Petition is taken up for final disposal at the admission stage by consent
of the parties.
4. The facts, in short, giving rise to the present petition are that the
State of Maharashtra filed Criminal N.C. bearing No. 264 of 2025 in the
Court of learned Chief Judicial Magistrate, Dhule under Sections 174(1)
(b) and 174(2)(4), of Bharatiya Nagarik Suraksha Sanhita, 2023 (for
short "B.N.S.S."). It is prayed in the said application that the applicant
happens to be informant. On the basis of his information, Police
registered a non-cognizable (N.C.) offence under Section 174 of B.N.S.S.
and Section 124 of the Maharashtra Police Act, 1951.
5. It is stated that the present petitioner is working as Section Officer
in Vidhimandal in Secretariat and deputed as Secretary of one Arjun
Khotkar, Chairperson of the Estimates Committee of the Maharashtra
Legislative Assembly. The said Committee was to hold meetings and was
on scheduled tour to Dhule and Nandurbar districts from 21 st May 2025
to 23rd May 2025. The petitioner had, therefore, come to Dhule on 15 th
(5) Cri.Appln-3033-2025&Cri.WP-1026-2025
May 2025 for making pre-arrangements. Though his appointment was
not approved by the Speaker of the Assembly, he worked as Personal
Assistant to the Chairperson of the Committee. He reserved a VIP suite
for himself in the Rest House at Dhule. The accused No.2 was staying in
an adjoining building of the said Rest House. The present Respondent
No.3, on telephone, informed on 20th May 2025 that the petitioner used
to visit the office of Residential Deputy Collector since 15 th May 2025.
From there, he made several calls to various departments, held
meetings, and tried to collect the amount towards bribe. He even gave
threats to such officers. The amount so collected around Rs.5 to 5.30
crore was kept in to Room No. 102 of the Rest House. It was thus stated
that the said amount is collected by extortion. On 21 st May 2025 at
05:00 p.m., journalists/correspondents were called to the office of
Respondent No.3, opposite the Guest House. They went to the Gulmohor
Rest House at 06:00 p.m. to 06:15 p.m. Since the key was with the
applicant, all the persons waited in front of Room No.102. This was
informed even to the Superintendent of Police. The Superintendent of
(6) Cri.Appln-3033-2025&Cri.WP-1026-2025
Police told that he would come there within few minutes; however, he
did not come. On contacting the Collector also did not respond. At
around 11:20 in the night, police personnel came with one lady
Inspector. They came with a note counting machine and electric steel
cutter. Since lock to Room No. 102 was a private lock, it was broken
open with the help of cutter. On search of the suite an amount of
Rs.1,84,84,200/- was found in the room. Panchnama was accordingly
drawn. Few empty bags also were found. One bag marked as 'M-90'
contained Rs.89,58,500/-. The said amount was seized and sealed with
signature of Narendra Pardeshi. A copy of the same panchnama is not
given to respondent No.3. It however is further alleged that, on getting
the information about this episode, this petitioner had already moved
some amount from two other suites from the Guest House. It is alleged
that inspite of information from Respondent No.3 for 4 to 5 hours, no
one paid any attention. For 9 days, no offence was registered. It is only
after 9 days i.e. on 31st May 2025, a non-cognizable complaint was
registered. Since no cognizable offence was registered, this petitioner is
(7) Cri.Appln-3033-2025&Cri.WP-1026-2025
not arrested.
6. It is alleged that the police are acting in a biased manner. On that,
the application was filed under Section 175(3) by the Respondent No.3
in the Court of learned C.J.M., Dhule. First prayer was to submit a report
of the inquiry by the police. The second prayer was to register an offence
under Section 308 of Bharatiya Nyaya Sanhita (for short "BNS"), under
Sections 13, 7, 7(A), 8 and 9 of the Prevention Corruption Act, Sections
3 and 4 of the Money Laundering Act and under Sections 318, 316(1),
316(2), 316(5), 318(1), 318(2), 318(3), 318(4) of the of the B.N.S. and
to pass necessary orders for investigation. Alongwith the said, affidavit
of respondent No.3 was filed.
7. On receipt of this, application was filed on 20th June 2025 by
Respondent No.3. The learned Magistrate found prima facie that there is
substance in the application and concluded that detailed investigation is
required. The learned Magistrate directed the In-charge of Dhule City
Police Station under Section 175(3) of B.N.S. to register crime against
(8) Cri.Appln-3033-2025&Cri.WP-1026-2025
accused persons and investigate the matter thoroughly. The complaint
with documents was sent to City Police Station Dhule by order dated 26 th
June 2025.
8. Being aggrived, this Petitioner filed Revision Application in the
Court of learned Sessions Judge, Dhule on various grounds, praying that
the order dated 26th June 2025 be quashed and set aside. On that, the
learned Sessions Judge passed the impugned order.
9. The learned Sessions Judge vide order dated 8 th July 2025, partly
allowed the revision application. The order dated 26 th May 2025 by the
learned Magistrate came to be set aside and the matter came to be
remanded back for fresh decision in view of observations made in the
order. The learned Chief Judicial Magistrate was directed to give option
to the original applicant either to register the crime under Prevention of
Corruption Act (for short "P.C. Act") and Prevention of Money
Laundering Act (for short "PML Act"). If he has desire to register and
investigate the offence under the P.C. Act and PML Act, the learned Chief
(9) Cri.Appln-3033-2025&Cri.WP-1026-2025
Judicial Magistrate was directed to return the application/complaint to
the original applicant for presentation to the proper Court having
jurisdiction and if the prayer for registering the offence under P. C. Act
and P.M.L. Act is to be withdrawn, then the learned Chief Judicial
Magistrate to decide the application afresh under Section 175(3) of
B.N.S.S. Parties were directed to appear before the learned CJM on 10 th
July 2025.
10. After remand of the matter, the learned Chief Judicial Magistrate
directed the Dhule City Police Station to register a crime for offences
under Sections 308, 61(2), 233, 238, 239, 240, 241 and 249 of the BNS
against the accused and investigate the matter thoroughly.
11. On the basis of this order, now the FIR bearing FIR No.0226/2025
is registered by the Dhule City Police Station on 12 th July 2025. The
informant is shown to be Mr. P. B. Mohite, Police Sub-Inspector, Dhule
City Police Station. The present petitioner has challenged the order
passed by the learned Sessions Judge remanding the case to learned
( 10 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
JMFC before this Court.
12. The learned Senior Advocate Shri. Deshpande, vehemently argued
that the order passed by the learned Sessions Judge is wholly erroneous
and illegal. He submits that, Section 176 of BNSS gives power of
investigation in cognizable offences. In the present case, power under
Section 174(2) is not available in non-cognizable offence. The learned
Magistrate could have considered the application only by original
informant and not by Respondent No.3. The prayers were combined
under Sections 175(3) and 174 of BNSS. Thus, the learned Chief
Judicial Magistrate ought to have seen as to who is the original
informant. The present respondent No.3 could have made independent
application. It is the matter of record that the informant is the police
officer. The application filed by respondent No.3 could not have been
entertained by the learned Chief Judicial Magistrate. The Sub-Divisional
Police Officer had filed a report on nine points. The learned Chief
Judicial Magistrate assumed the power under Section 175(3), which is
available under Section 173(4) i.e. only in cognizable cases. Both the
( 11 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
relevant sections cannot be clubbed together. The report does not make
out any cognizable offence, and thus the learned Magistrate has no
jurisdiction to pass any order directing to register an offence under
different Acts. The revisional Court failed to appreciate the grounds
about the locus standi of the respondent No.3 and passed erroneous
order.
13. On one hand, he submits, the revisional Court has come to a
conclusion that the order impugned therein is illegal, on the other hand
remanded matter with directions. Only course open to learned
Revisional Court was to set aside the impugned order. By remanding the
matter, he exceeded jurisdiction as no such direction could have been
issued in the revision. Though now the FIR is registered, the same is
registered on the basis of erroneous order and if that erroneous order
itself is set aside, the very foundation of the proceeding would collapse.
He further argued that the petitioner happens to be a public servant. In
view of Maharashtra Amendment Act, he could not be sued without
prior permission of the Government. There is no permission obtained
( 12 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
from the Superior of the accused. The learned Magistrate passed the
order without hearing the accused. This ground though specifically
taken, was not considered by the learned Sessions Court. He submits
that in view of this position, the compliance is not done by both the
Courts. The application was not supported by affidavit and documents to
show compliance under Section 175 of BNSS. The officer in-charge was
also required to be added.
14. Learned Senior Advocate points out paragraph Nos. 92 and 93
from judgment in the case of Arun P. Gidh (supra), he submits that in the
said judgment it is held that the only power under Section 156(3) of the
IPC is to direct investigation and not to pass any other order. The said
power is available only in cases of cognizable offences whereas the
present case is of non-cognizable offence. Respondent No.3 has
unnecessarily created complications. The Court cannot treat Respondent
No.3 as informant. When the jurisdictional error is pointed out, there is
no option but to set aside such order. In the present case, the learned
Sessions Judge has exceeded the power and committed jurisdictional
( 13 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
error. The investigation shows that there is considerable progress in the
investigation by the police on the basis of earlier information.
15. In support of his submissions, he relied upon the following
judgments.
(i) Ranjit Singh Bath and Anr. Vs. Union Territory of
Chandigarh and Anr.1
(ii) Om Prakash Ambadkar Vs. State of Maharashtra2;
(iii) Mr. Gajendra Tayade Vs. State of Maharashtra3.
16. As against this, the learned Advocate Mr. Ghatge, vehemently
argued that so far as the ground of public servant is concerned, out of
three accused, only one happens to be a public servant. The prayer made
in the petition is only to set aside the order passed by the learned
Sessions Judge. There is no prayer made in the application challenging
an order passed by the learned Chief Judicial Magistrate after remand.
The offence is now already registered. He relied upon the judgment in
1 2025 SCC Online SC 1479
2 2025 SCC Online SC 238
3 2013 ALL MR Cri. 1963
( 14 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
the case of Arun P Gidh Vs. Chandraprakash Singh & Ors. 4 This Court
now cannot go behind registration of FIR. On merits, he submits that the
Estimates Committee is formed by the State of Maharashtra. The
applicant is Personal Assistant to the Chairman of the said Committee.
Non-cognizable offence was registered in the presence of respondent
No.3 on 21st May 2025 and Special Investigation Team was also
constituted. Till 21st May 2025, the MCR was not recorded. About locus
to respondent No.3, he submits that, in the complaint, there is reference
of his name. Though informant is shown to be one Shriram Pawar, a
Police Officer, in his statement, there is nothing to show as to how he got
the knowledge. It is only because of the present respondent No.3, he got
the knowledge and therefore, it is Respondent No.3 who needs to be
treated original informant. Presence of the present respondent is also
noted in the information. Though the offence was cognizable, it took 10
days to register in MCR. The preliminary inquiry shows that there is an
extortion which happens to be a cognizable offence. Since the complaint
was registered as MCR, the respondent had to approach the learned
4 2024 ALL MR (Cri.) 2012 (F.B.)
( 15 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
Magistrate.
17. He invites attention to Section 178 of BNSS giving power to the
Magistrate to direct preliminary enquiry. He submits that Section 175(4)
is not available, as there is no challenge to the order passed by the
learned Magistrate dated 10th July 2025 directing to register the FIR.
The present complaint under Section 210 already non-cognizable
offence is registered. The learned Magistrate has the power to pass such
order independently or suo moto.
18. He further submits that when a public servant is involved in an
offence when is not acting in the discharge of his official duties, no
protection is available to him. However, he further submits that, if at all,
bar is attracted, it is with respect to taking cognizance and not for
investigation. He relied upon the Section 506 of BNSS. He submits that
order is passed in good faith with the aid of Section 507. He ultimately
submits that the fair investigation is necessary and prays for dismissal of
the writ petition.
( 16 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
19. In support of his submissions, he relied upon the following
judgments.
(i) E. Shivakumar Vs. Union of India and Ors.5;
(ii) Manohar Lal Vs. Vinesh Anand6
(iii) Lalita Kumari Vs. Government of Uttar Pradesh and Ors.7;
(iv) Inspector of Police and Anr. Vs. Battenapatla Venkata Ratnam and
Anr.8
(v) Shivjee Singh Vs. Nagendra Tiwary and Ors.9
(vi) Neharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and
Ors.10
20. Learned APP submits that the present petition is not maintainable
in view of judgment in the case of Arun P. Gidh (supra). She further
submits that now FIR is registered and thus now the present writ
petition is not maintainable. It is open for the petitioner to challenge the
FIR.
5 2018 AIR (SCW) 2486
6 2001 AIR (SCW) 1590
7 2013 AIR (SCW) 6386
8 2015 AIR (SC) 2403
9 2010 AIR (SC) 2261
10 AIR (SCW) 1918
( 17 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
21. In the case of Ranjit Singh Bath and Ors. (supra), it has been held
that mere telephonic instruction or a phone call cannot be taken to be an
application under Section 173(4) of the BNSS. There is no dispute about
the said proposition.
22. In the case of Om Prakash Ambadkar (sura), the Hon'ble Supreme
Court held it to be mandatory that sanction from a superior officer is
required for lodging the FIR. If the order directing to register an offence
is without prior sanction of the superior authority, it is held that the
order is non-est, and no investigation can be done on the basis of such
order.
23. In the case of Gajendra Tayade (supra), complainant had sought to
frame an additional charge under the provisions of Section 3 of the
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act
before filing of the final report. It is held that till such final
report/charge-sheet is filed, the Magistrate has no role to play pending
investigation. The complainant has an opportunity to submit his say
( 18 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
after filing of the report under Section 173 of Cr.P.C. Till that period, no
relief can be granted to the complainant.
24. In the case of E. Shivakumar (supra), the Hon'ble Supreme Court
held that the accused has no right to be heard at the stage of
investigation. He cannot seek an opportunity of hearing as a matter of
course. He cannot pray for any relief as regards investigation.
25. In the case of Manohar Lal (supra), the Hon'ble Apex Court
considered that the doctrine of locus-standi is totally foreign to criminal
jurisprudence. This judgment is relied upon by the learned Advocate for
respondent No.3 to show that he need not show locus standi to file an
application before the learned JMFC and revision before the learned
Sessions Judge. There is no dispute about this proposition as well.
26. In the case of Lalita Kumari (supra), the Five Judges Bench of the
Hon'ble Supreme Court considered the issues (i) as to whether the
immediate non-registration of FIR leads to scope for manipulation by the
police which affects the right of the victim/complainant to have a
( 19 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
complaint immediately investigated upon allegations being made; and
(ii) whether in cases where the complaint/information does not clearly
disclose the commission of a cognizable offence in clear terms, and the
FIR is compulsorily registered, it would infringe the rights of an accused.
27. It is held that the information should disclose cognizable offence.
If the information satisfied the requirement of Section 154(1) of the
Cr.P.C., the police has no other option but to enter the substance thereof
in the prescribed format and register the case on the basis of such
information. Section 154 of the Code is held to be mandatory, requiring
the concerned officer to register the case. The Hon'ble Apex Court held
that the legislature has consciously used the expression "information" in
Section 154(1) of the code as against the expression used in Section
41(1)(a) and (g); the information need not be "credible information" or
"reasonable complaint". The prefix "reasonable" with "information"
distinguished the requirement under Section 41(1)(a) and (g) and
Section 154(1) of the Code. It is sufficient that the information
disclosing the cognizable offence is received. It must necessarily mean
( 20 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
that the officer need not go into the aspect of credibility of such
information. It is not necessary to conduct a preliminary inquiry when
the police officer has doubt about the veracity of the accusation. The
Court ultimately held that registration of of FIR is mandatory under
Section 154 of the Code on receipt of information making out a case of
commission of an cognizable offence. The Hon'ble Court recorded the
following conclusions:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but
indicates the necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR
must be registered. In cases where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must be supplied to the first
informant forthwith and not later than one week. It must disclose reasons in
brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against erring officers who
do not register the FIR if information received by him discloses a cognizable
offence.
(v) The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether the
information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
( 21 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in reporting the
matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time bound and in any case
it should not exceed 7 days. The fact of such delay and the causes of it must be
reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all
information received in a police station, we direct that all information relating to
cognizable offences, whether resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously reflected in the said Diary and
the decision to conduct a preliminary inquiry must also be reflected, as
mentioned above.
28. In the case of Inspector of Police and Anr. (supra), the question
was whether sanction is required in the cases for registering the offence
or for issuing direction to register an offence against a public servant.
The Court considered the wording "while acting or purporting to act in
discharge of official duty". The Court considered the judgment in the
case of Shambhoo Nath Misra Vs. State of Uttar Pradesh11.
29. In the case of Shambhoo Nath Misra (supra), it is a case of
allegation of fabrication of record and misappropriation of public fundby
11 1997 SCC (5) 326
( 22 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
the public servant. It was held that the said act cannot be said to be an
act committed in the discharge of official duty and therefore sanction is
not necessary. The acceptance of the sanction was held to be clearly
illegal and unsustainable. The Hon'ble Supreme Court in that case held
that no sanction was required. In the case of Neeharika Infrastructure
Pvt. Ltd. (supra), The Full Bench of the Hon'ble Supreme Court was
dealing with the matter of quashing of proceeding. After considering
various judgments, the conclusions recorded are as below:
(i) Police has the statutory right and duty under the relevant provisions of
the Code of Criminal Procedure contained in Chapter XIV of the Code to
investigate into a cognizable offence;
(ii) Courts would not thwart any investigation into the cognizable offences;
(iii) It is only in cases where no cognizable offence or offence of any kind is
disclosed in the first information report that the Court will not permit an
investigation to go on;
(iv) The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the 'rarest of rare cases (not to be
confused with the formation in the context of death penalty).
(v) While examining an FIR/complaint, quashing of which is sought, the
court cannot embark upon an enquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR/complaint;
(vi) Criminal proceedings ought not to be scuttled at the initial stage;
(vii) Quashing of a complaint/FIR should be an exception rather than an
ordinary rule;
(viii) Ordinarily, the courts are barred from usurping the jurisdiction of the
police, since the two organs of the State operate in two specific spheres of
activities and one ought not to tread over the other sphere;
(ix) The functions of the judiciary and the police are complementary, not
( 23 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
overlapping;
(x) Save in exceptional cases where non-interference would result in
miscarriage of justice, the Court and the judicial process should not interfere at
the stage of investigation of offences;
(xi) Extraordinary and inherent powers of the Court do not confer an
arbitrary jurisdiction on the Court to act according to its whims or caprice;
(xii) The first information report is not an encyclopaedia which must disclose
all facts and details relating to the offence reported. Therefore, when the
investigation by the police is in progress, the court should not go into the merits
of the allegations in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be investigated or that it
amounts to abuse of process of law. After investigation, if the investigating
officer finds that there is no substance in the application made by the
complainant, the investigating officer may file an appropriate report/summary
before the learned Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
(xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of
wide power requires the court to be more cautious. It casts an onerous and more
diligent duty on the court;
(xiv) However, at the same time, the court, if it thinks fit, regard being had to
the parameters of quashing and the self-restraint imposed by law, more
particularly the parameters laid down by this Court in the cases of R.P. Kapur
(supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
(xv) When a prayer for quashing the FIR is made by the alleged accused and
the court when it exercises the power under Section 482 Cr.P.C., only has to
consider whether the allegations in the FIR disclose commission of a cognizable
offence or not. The court is not required to consider on merits whether or not
the merits of the allegations make out a cognizable offence and the court has to
permit the investigating agency/police to investigate the allegations in the FIR;
(xvi) The aforesaid parameters would be applicable and/or the aforesaid
aspects are required to be considered by the High Court while passing an
interim order in a quashing petition in exercise of powers under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India. However, an
interim order of stay of investigation during the pendency of the quashing
petition can be passed with circumspection. Such an interim order should not
require to be passed routinely, casually and/or mechanically. Normally, when the
investigation is in progress and the facts are hazy and the entire
evidence/material is not before the High Court, the High Court should restrain
itself from passing the interim order of not to arrest or "no coercive steps to be
adopted" and the accused should be relegated to apply for anticipatory bail
under Section 438 Cr.P.C. before the competent court. The High Court shall not
and as such is not justified in passing the order of not to arrest and/or "no
coercive steps" either during the investigation or till the investigation is
( 24 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
completed and/or till the final report/charge-sheet is filed under Section 173
Cr.P.C., while dismissing/disposing of the quashing petition under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India.
(xvii) Even in a case where the High Court is prima facie of the opinion that
an exceptional case is made out for grant of interim stay of further investigation,
after considering the broad parameters while exercising the powers under
Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India
referred to hereinabove, the High Court has to give brief reasons why such an
interim order is warranted and/or is required to be passed so that it can
demonstrate the application of mind by the Court and the higher forum can
consider what was weighed with the High Court while passing such an interim
order.
(xviii) Whenever an interim order is passed by the High Court of "no coercive
steps to be adopted" within the aforesaid parameters, the High Court must
clarify what does it mean by "no coercive steps to be adopted" as the term "no
coercive steps to be adopted" can be said to be too vague and/or broad which
can be misunderstood and/or misapplied.
30. By recording these conclusions, the interim order/direction issued
by the High Court that no coercive measure be adopted, was held to be
deficient. It is observed that while directing not to take coercive action,
it was necessary for the Court to specifically record as to what coercive
steps the High Court was excluding by the order.
31. Both the parties have placed on record the judgment of a Full
Bench of this court in the case of Arun Gidh (supra). It is the case of the
respondent No.3 that since there is no prayer of quashing of the
proceeding, even if in this petition succeeds, the FIR will still continue.
( 25 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
Whereas the petitioner, by relying upon certain portion para 92 and 93,
submits that once the order registering FIR is quashed and set aside,
consequences would naturally follow and the FIR itself also will have to
be quashed and set aside. This court would come to this question at the
end.
32. Whenever the learned Revisional Court has rightly passed an order
or has exceeded the jurisdiction by directing the trial Court to consider
the matter afresh by issuing directions by way of its order. The learned
Magistrate has rightly passed an order directing registration of offence
and carried out the investigation. The learned Magistrate directed to
register the crime against the accused and investigate the matter
thoroughly under Section 175(3) of the BNSS.
33. The learned Sessions Judge passed the order. The petitioner has
objection to these clauses (3) and (4). This Court thus has to necessarily
consider as to whether the Sessions Court was within its power to pass
orders in clause (3) and (4).
( 26 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
34. So far as clause (3) is concerned, it is not clear as to under what
provision complaint is to be returned. No provision like return of plaint
is found in BNSS. This clause therefore needs to be set aside.
35. So far as clause No.4 is concerned, this Court finds that the said
also cannot be sustained in the eyes of law. This court has to consider
the question as to whether the order directing registration of FIR being
set aside would result in the quashing of FIR. Whether there is substance
in the submission of the learned Advocate for the respondent No.3 that
even if the impugned order is quashed and set aside, since now, the
registration of FIR is already registered, it is necessary for the petitioner
to get the FIR quashed.
36. The judgment in the case of Arun P. Gidh (supra), in view of
submission of learned APP on the point of maintainability of the
petition. The full Bench judgment of this court held that if the FIR is not
registered on the basis of direction under Section 156(3) of the Cr.P.C.,
the investigating agency cannot proceed to register the FIR and enter
( 27 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
into investigation. In other cases, if the FIR is already registered before
the revisional Court passes an interim order, in such case, stage becomes
relevant. In clause (d) it is held that the revisional Court must be
considered to have the power to stay further proceeding pursuant to the
registration of FIR if the matter is still at the stage of investigation.
When investigation culminates in lodging of the charge-sheet or taking
cognizance by the Court having jurisdiction, the interim order or final
order passed by the revisional Court setting aside the order of the
Magistrate under Section 156(3) of the Cr.P.C. will have no effect of
quashing of FIR or a charge-sheet as the case may be.
37. In the present case, this court has no hesitation in coming to the
conclusion that the learned revisional Court has certainly committed
error by directing the complainant to exercise the option as to whether
he wants to register an offence under P. C. Act or PML Act and if he
exercises the option then to return the complaint. Equally, the said
direction could not have been given by the revisional Court. The same is
the case with the clause (4). It is not for the Sessions Court to direct
( 28 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
what course be adopted by the applicant/complainant. Once the order
directing investigation was set aside, no further direction was needed
from the Sessions Court.
38. Though while entertaining the revision, the revisional Court can go
into the matter of propriety and can grant relief not prayed for by any of
the parties, however, that is to be done within its power. This Court finds
that by passing order in clauses (3) and (4), the revisional Court has
exceeded the power. Hence, the following order:-
ORDER
(i) Criminal Writ Petition is partly allowed.
(ii) Clause (3), (4) and (5) of the impugned order are quashed and set
aside.
(iii) However, since now the FIR is already registered and the
investigation is also started, it is open for the petitioner to seek an
appropriate remedy by filing appropriate proceeding as provided under
law as per advice.
( 29 ) Cri.Appln-3033-2025&Cri.WP-1026-2025
(iv) With this, Criminal Writ Petition stands disposed off.
(v) In view of disposal of Writ Petition, Criminal Application does not
survive and is accordingly disposed off.
[KISHORE C. SANT, J.]
