- 1 - criwp118.23.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 118 OF 2023 Mohammad Abdul Shakur Shaikh & others .. Petitioners versus The State of Maharashtra & another .. Respondents Mr. S. S. Jadhavar, Advocate for the Petitioners. Mr. S. G. Joshi, APP for the State. Mr. G. R. Syed, Advocate for Respondent No. 2. CORAM : R. M. JOSHI, J. DATE : 22nd JUNE, 2026. PER COURT : 1. The issue involved in the present petition is as to whether the Petitioners who are accused in Crime No. 03/2014 have locus standi to raise any objection to the protest petition filed by the Respondent/original informant and whether the learned Magistrate was required to hear them while deciding the protest petition. 2. Facts which led to filing of this petition can be narrated in brief as under :- According to the Petitioners, at the instance of Respondent offence came to be registered vide C.R. No. 205/2010 with Azad Nagar Police Station, Dhule, alleging appointments of employees - 2 - criwp118.23.odt being done by Management/accused by fabricating documents. After due investigation charge-sheet is filed before competent Court and charge also came to be framed against accused in RCC No. 202/2011. Thereafter, an application was moved vide Exhibit 45 by informant for recovery of certain documents. This application was allowed by Magistrate by order dated 21.09.2019. The challenge was raised to the said order in Writ Petition bearing No. 1730/2019. Now, the said petition is disposed of by order dated 13.11.2025 permitting the informant to take recourse of Section 91 of Code of Criminal Procedure. 3. It is the case of Petitioners that without disclosing previous First Information Report, Respondent made complaint to Magistrate being No. 937/2013. Investigation was directed by Magistrate in the said complaint under Section 156(3) of Code of Criminal Procedure. Accordingly, Crime No. 3/2014 was registered by police. The said First Information Report is sought to be quashed by filing Criminal Application No. 500/2014, which is pending before the Court and further proceedings were stayed. Since ‘C’ summary was filed by police, application came to be withdrawn on 23.08.2018. It is thereafter, Respondent/informant filed present petition before - 3 - criwp118.23.odt Magistrate and by passing impugned order dated 21.09.2019, Magistrate directed further investigation into the crime. Against this order, present petition is filed. 4. During the course of hearing, learned Counsel for the Petitioners sought to make submission on merits with regard to the tenability of the First Information Report on the ground that previously another report came to be filed and hence subsequent report is not maintainable. Apart from this, it is his submission that the learned Magistrate ought not to have entertained the protest petition and, in any case, in view of the facts of the case, could not have directed further investigation. It is his submission that since ‘C’ summary is filed by the investigating agency, right is created in favour of the Petitioners/accused and since the issue with regard to acceptance or otherwise of the said ‘C’ summary was raised in the protest petition, the accused had a right to cause appearance so also right of hearing and non providing them of this opportunity would defeat principles of natural justice. It is his submission that unlike private complaint wherein the accused is not permitted to appear before the Magistrate before issuance of process, here in this case, on filing of the First Information Report, Petitioners have right not only - 4 - criwp118.23.odt to challenge the First Information Report but also to appear in the proceeding of protest petition. 5. Learned Counsel for the Respondent who had raised issue of maintainability of the present petition as well as has taken exception to the locus standi of the Petitioners/accused seeking hearing in the protest petition, submits that it is well settled position of law that till process is issued against the accused, he has no say before the criminal Court. Here in this case, he drew attention of the Court to the fact that pursuant to registration of First Investigation Report, investigation was conducted and ‘C’ summary is filed. According to him, it is a right of the informant to take exception to ‘C’ summary and accordingly, protest petition came to be filed before the Magistrate. It is his submission that the order passed by the Magistrate of conducting further investigation is not without jurisdiction. In any case, according to him, the Petitioners cannot be heard even in this petition leave apart having any right of hearing in the protest petition. 6. The facts as recorded above indicate that the provisions of Code of Criminal Procedure have application to the present case. Chapter - 5 - criwp118.23.odt XI of Code of Criminal Procedure deals with the procedure from the stage of lodging of First Information Report till filing of charge-sheet. This scheme does not contemplate hearing of accused at any stage till issuance of process by the Magistrate. The position of law in this regard is fairly settled to say that the accused would not get any locus standi or say till the process is issued against him. In this regard, it would be material to take note of the judgment of the Hon’ble Supreme Court in case of Major General A. S. Gauraya & another vs. S. N. Thakur & Another, (1986) 2 SCC 709, wherein while dealing with the provisions of Code of Criminal Procedure, it is held that the Magistrate has no inherent power to entertain the application or objection from any person other than the victim/complainant/injured person or relatives of deceased. The Magistrate, therefore, would not have power to entertain the accused till process is issued against him. In case of Bhagwat Singh vs. Commissioner of Police and another, 1985 AIR 1285, it is held that extra ordinary jurisdiction of the High Court and Supreme Court cannot be entertained by the Magistrate. The Magistrate is bound by the provisions of Code of Criminal Procedure and in absence of any such provision of entertaining the accused at any stage prior to issuance of process, the Magistrate was not empowered to entertain any objection from - 6 - criwp118.23.odt accused to the protest petition filed by the informant. In such case, there was no reason for the Magistrate to accord any opportunity to the Petitioners/accused of hearing. Moreover, once the Petitioners have no right of hearing, at this stage, question of them being permitted to challenge the order passed by the Magistrate of carrying out further investigation does not arise. In any case, the Magistrate was within his jurisdiction under Section 173(8) of Code of Criminal Procedure to direct further investigation and exercise of such jurisdiction cannot be entertained and interfered in the petition. 7. Needless to say that the power of Magistrate under Code cannot be equated with the power of High Court in a petition/application for quashment of First Information Report. Thus, merely because it would be open for an accused to seek quashment of First Information Report, he cannot be allowed to cause interference in the proceedings before Magistrate till issuance of process/summons against him. 8. As a result of above discussion, the issue is required to be answered in negative. Since the said issue is answered in negative, the question of entertaining the petition further and going into the - 7 - criwp118.23.odt case sought to be made out on merit by the Petitioner, does not arise. Hence, the petition stands dismissed. 9. Pending application, if any, does not survive and stands disposed of. ( R. M. JOSHI, J.) dyb