2016 (7) TMI 1460 - HC - Indian Laws

Postponement of issuance of process - Section 202 Criminal Procedure Code - Whether or not there is sufficient material for proceeding further in the matter? - Held that - It is seen from the body of the complaint that the respondent has admitted the fact that all applicants who are the proposed accused are residing at places falling outside the territorial jurisdiction of the Court of Judicial Magistrate Akola. Therefore mandate of Section 202 of the Code of Criminal Procedure would require the learned Magistrate to postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or some other fit person in order to decide as to whether or not there is sufficient ground for proceeding further. Such postponement of issue of process in a case where the accused is residing beyond the territorial jurisdiction of the Court of Judicial Magistrate has been made mandatory under the newly amended Section 202 of the Code of Criminal Procedure which has been inserted in the Code of Criminal Procedure by Act 25 of 2005 with effect from 23.6.2006. It is seen from the impugned order that this requirement has not been followed by the learned Magistrate. The newly amended Section 202 of Criminal Procedure Code makes it obligatory for the Criminal Court empowered to take cognizance of the complaint to postpone the issue of process in a case where the accused resides at a place falling beyond the territorial jurisdiction of that Court to order an enquiry or direct an investigation as contemplated in the said Section. Application allowed - The matter is remanded back to the learned 5th Judicial Magistrate First Class Akola for considering it afresh in accordance with law.

Summary

Issues:
1. Compliance with Section 202 of the Criminal Procedure Code for issuance of process.
2. Territorial jurisdiction of the Court.
3. Applicability of precedents in similar cases.

Compliance with Section 202 of the Criminal Procedure Code:
The judgment addresses the contention raised by the learned counsel for the applicants regarding the issuance of process without following the mandate of Section 202 of the Criminal Procedure Code. The applicants argued that the Magistrate did not conduct the required inquiry to determine if there was sufficient material to proceed further, especially considering the accused were not residents within the territorial jurisdiction of the court. The judgment highlights the mandatory nature of the newly amended Section 202, emphasizing the need for the Magistrate to postpone the issuance of process in such cases and conduct an inquiry. It references relevant case law, such as Udai Shankar Awasthi, to support the obligation of the Magistrate to investigate when the accused reside beyond the court's jurisdiction.

Territorial Jurisdiction of the Court:
The judgment delves into the issue of territorial jurisdiction, noting that the accused were residing outside the territorial limits of the Court of Judicial Magistrate, Akola. It emphasizes that under Section 202, the Magistrate is required to postpone the issuance of process in such instances and conduct an inquiry to ascertain the grounds for proceeding further. The judgment cites the necessity for compliance with the law and the implications of the accused's residence on the jurisdiction of the court, leading to the conclusion that the impugned order was not sustainable due to non-compliance with Section 202.

Applicability of Precedents:
The judgment evaluates the cases cited by both parties to determine their relevance to the present matter. It distinguishes the facts of the cases relied upon by the respondent, emphasizing that they do not align with the specific issue of non-compliance with Section 202 in the current case. The judgment underscores the importance of following the newly amended provisions of the Criminal Procedure Code and directs that the matter be remanded to the Magistrate for reconsideration in accordance with the law. It concludes that the impugned order is quashed and sets forth the need for a fresh consideration of the case by the Magistrate without influence from the current judgment's observations.