Judgment M.R. Shah, J.—Mr. Dodia, learned Advocate appearing on behalf of the petitioners seeks permission to covert the present Criminal Misc. Application into Special Criminal Application, under Article 227 of the Constitution of India. 2. Permission as prayed for by the learned Advocate appearing on behalf of the petitioners is granted. Present Criminal Misc. Application is ordered to be converted into Special Criminal Application under Article 227 of the Constitution of India. 3. Rule. Mr. LB Dabhi, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the Respondent No. 1 as well as Mr. PP Majmudar, learned Advocate waives the service of notice of rule on behalf of the Respondent No. 2 – original complainant. 4. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present petition is taken up for final hearing today. 5. Present petition has been preferred by the petitioners - original accused Nos.11, 12 and 13 to quash and set aside impugned order dated 21/5/2011 passed by the learned Additional Judicial Magistrate, Kalol below Ex.1 in M. Case No. 2 of 2011 under Section 156(3) of the Code of Criminal Procedure, by which despite the earlier order dated 24/9/2010 sending the said complaint for investigation / inquiry under Section 202 (1) of the Code of Criminal Procedure to the Police Inspector, Kalol Police Station and despite the fact that pursuant to the said order even the concerned police officer submitted report to the learned Magistrate, thereafter, by the impugned order the learned Additional Chief Judicial Magistrate, Kalol has passed the impugned order to send the said complaint to Police Inspector, Kalol City Police Station for investigation / inquiry under Section 156(3) of the Code of Criminal Procedure. 6. Mr. Dodia, learned Advocate appearing on behalf of the petitioners – original accused Nos. 11, 12 and 13 has vehemently submitted that once the learned Magistrate earlier passed an order for investigation / inquiry under Section 202(1) of the Code of Criminal Procedure and pursuant to which the concerned Police Officer has submitted his report, thereafter it is not open for the learned Magistrate to send the said complaint again for investigation / inquiry under Section 156(3) of the Code of Criminal Procedure. 7. Mr. Dodia, learned Advocate appearing on behalf of the petitioners – original accused Nos. 7. Mr. Dodia, learned Advocate appearing on behalf of the petitioners – original accused Nos. 11, 12 and 13 has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Rameshbhai Pandurao Hedau vs. State of Gujarat, reported in 2010 (2) GLR 1826, as well as decision of this Court in the case of Parshottambhai Karshanbhai Surani and Others vs. Chandrikaben Karshanbhai Surani and Another, reported in 2008 (2) GLH 6 . By making above submissions and relying upon above decisions, it is requested to allow the present petition by quashing and setting aside the impugned order dated 21/5/2011 passed by the learned Additional Judicial Magistrate, Kalol by which the learned Magistrate directed to send the complaint to the Kalol City Police Station for investigation / inquiry under Section 156(3) of the Code of Criminal Procedure. 8. Mr. P.P. Majmudar, learned Advocate appearing on behalf of the Respondent No. 2 - original complainant has submitted that as no cognizance was taken by the learned Magistrate while sending the complaint for investigation / inquiry under Section 202(1) of the Code of Criminal Procedure, it was open for the learned Magistrate to send the complaint for investigation under Section 156(3) of the Code of Criminal Procedure. He has submitted that as such, no illegality has been committed by the learned Magistrate in sending the complaint for investigation under Section 156(3) of the Code of Criminal Procedure. 9. Mr. Majmudar, learned Advocate appearing on behalf of the Respondent No. 2 has submitted that as such the accused persons have not challenged the impugned order. By making above submissions it is requested to dismiss the present petition. 10. Mr. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order considering the aforesaid two decisions of the Hon’ble Supreme Court as well as this Court. 11. Heard the learned advocates appearing on behalf of the respective parties at length. 12. The short question which is posed for consideration of this Court is, Whether once the learned Magistrate has exercised discretion and passed an order for investigation / inquiry under Section 202 of the Code of Criminal Procedure, is it open for the learned Magistrate subsequently to send the complaint for investigation / inquiry under Section 156(3) of the Code of Criminal Procedure ? As such the aforesaid controversy is now not res-integra in view of the decision of the Hon’ble Supreme Court in the case of Rameshbhai Pandurao Hedau (Supra) wherein, while considering the identical question, the Hon’ble Supreme Court has observed and held that once a Magistrate takes cognizance of the offence and passes an order for inquiry or investigation under Section 202 of the Code of Criminal Procedure, thereafter the learned Magistrate is precluded from ordering investigation under Section 156(3) of the Code of Criminal Procedure. In the said decision the Hon’ble Supreme Court has observed and held that inquiry or investigation order under Section 202 of the Code of Criminal Procedure is at post-cognizance stage and once the Magistrate takes cognizance under Section 202 of the Code of Criminal Procedure, he is precluded to pass order for inquiry or investigation under Section 156(2) of the Code of Criminal Procedure. 13. Identical question also came to be considered by the learned Single Judge of this Court in the case of Parshottambhai Karshanbhai Surani and others (Supra), wherein the learned Single Judge has observed and held that once cognizance is taken by the learned Magistrate upon the complaint under Section 202 of the Code of Criminal Procedure, it is not legally permissible to the learned Magistrate to switch back to the pre-cognizance stage and direct investigation under Section 156(3) of the Code of Criminal Procedure. 14. Considering the aforesaid two decisions of the Hon’ble Supreme Court as well as this Court, the impugned order dated 21/5/2011 passed by the learned Additional Judicial Magistrate, Kalol sending the complaint for investigation under Section 156(3) of the Code of Criminal Procedure to Police Inspector, Kalol City Police Station cannot be sustained and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Consequently, any further complaint registered by the Police Inspector, Kalol City Police Station pursuant to the aforesaid order dated 21/5/2011 also cannot be sustained and the same also deserves to be quashed and set aside and is hereby quashed and set aside accordingly. It goes without saying that the learned Magistrate will proceed with the criminal complaint form the stage prior to the impugned order passed by the learned Magistrate. Rule is made absolute to the aforesaid extent. Direct Service is permitted. P P P P P