2009 (2) TMI 875 - HC - Indian Laws

Issues Involved:
1. Scope and object of the amended provision of Section 202 of the Code of Criminal Procedure.
2. Legality and propriety of the order passed by the learned Chief Judge, City Sessions Court, regarding the issuance of process against accused persons residing outside the jurisdiction.
3. Interpretation of the word "shall" in the context of Section 202.
4. Whether the amended provision of Section 202 mandates an inquiry in all cases where the accused resides outside the jurisdiction.
5. The discretionary power of the Magistrate under Section 202.

Comprehensive, Issue-Wise Detailed Analysis:

1. Scope and Object of the Amended Provision of Section 202 of the Code of Criminal Procedure:
The primary issue discussed is the scope and object of the amended provision of Section 202 of the Code of Criminal Procedure, which was introduced to prevent harassment through false complaints against persons residing at distant places. The court emphasized that the amendment aims to ensure that before summoning an accused residing beyond the Magistrate's jurisdiction, an inquiry must be conducted to ascertain sufficient grounds for proceeding.

2. Legality and Propriety of the Order by the Learned Chief Judge, City Sessions Court:
The petitioners challenged the order of the learned Chief Judge, City Sessions Court, which set aside the order of the Chief Metropolitan Magistrate issuing process against the accused persons. The City Sessions Court had directed compliance with the amended provision of Section 202 before issuing any process. The High Court examined whether the City Sessions Court's order was justified in light of the amended provision of Section 202.

3. Interpretation of the Word "Shall" in the Context of Section 202:
The court analyzed the interpretation of the word "shall" in the context of Section 202. Various precedents were cited to argue that "shall" does not always denote a mandatory requirement. The court referred to multiple Supreme Court judgments, such as Municipal Corporation of Greater Bombay v. The B.E.S.T. Workers Union and State of U.P. v. Babu Ram Upadhya, which held that the word "shall" could be interpreted as directory depending on the context and legislative intent.

4. Whether the Amended Provision of Section 202 Mandates an Inquiry in All Cases:
The court considered whether the amended provision of Section 202 mandates an inquiry in all cases where the accused resides outside the jurisdiction. The court concluded that the amendment does not make it obligatory for the Magistrate to conduct an inquiry in every case. The Magistrate has the discretion to decide whether to conduct an inquiry based on the evidence presented under Section 200. The court emphasized that the Magistrate's discretion should not be overridden by a rigid interpretation of the amendment.

5. Discretionary Power of the Magistrate Under Section 202:
The court highlighted that the discretionary power of the Magistrate under Section 202 remains intact even after the amendment. The Magistrate can choose to conduct an inquiry if he deems it necessary. The court clarified that the amendment to Section 202 applies only when the Magistrate decides to postpone the issuance of process. If the Magistrate is satisfied with the evidence under Section 200, there is no mandatory requirement to conduct an inquiry under Section 202.

Conclusion:
The High Court set aside the order of the learned Chief Judge, City Sessions Court, and restored the original order of the Chief Metropolitan Magistrate issuing process against the accused persons. The court directed the lower court to proceed with the case expeditiously, emphasizing that the application of Section 202 is discretionary and not mandatory. The court's interpretation ensures that the procedural law serves as an aid to justice rather than a hindrance.

← Previous Next →