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2018 (5) TMI 2157 - HC - Indian LawsIssuance of process under Section 204 Cr.P.C. and subsequent proceedings - accused persons residing at a place beyond the territorial jurisdiction of the learned Magistrate - nature of enquiry in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - Consequence of non-compliance with such requirement - Objection may be raised at the initial stage only or after much deliberation as well? - HELD THAT - It is long standing settled principles of law relating to the mode of exercising a statutory power by a Court when such power is conferred for the first time upon it. Lord Jessel M.R. observed in Taylor v. Taylor that when a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed it means that no other mode is to be adopted. Under the provisions of Section 190 Cr.P.C. the competent Magistrate may take cognizance of any offence subject to the provisions of Chapter XIV Cr.P.C. any Chief Judicial Magistrate is empowered under Section 192 Cr.P.C. to transfer the case for inquiry after taking cognizance to a competent Magistrate subordinate to him. Needless to point out that under the provisions of sub-section (2) of Section 12 Cr.P.C. an Additional Chief Judicial Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under Cr.P.C. or under any other law for the time being in force as the High Court may direct and the transferee Magistrate is under obligation to examine the complaint and his witnesses and only thereafter to issue the process - According to the settled principles of law the amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal Procedure (Amendment) Act 2005 is aimed to prevent innocent persons who are residing outside the territorial jurisdiction of the Learned Magistrate concerned from harassment by unscrupulous persons from false complaints. The use of expression shall looking to the intention of the legislature to the context is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. Nature of enquiry to be undertaken by the learned Magistrate under sub-section (1) of Section 202 Cr.P.C. in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - HELD THAT - Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202 Cr.P.C. the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act 2005 the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an inquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer. Whether non-compliance of such enquiry in terms of Sub-Section (1) of Section 202 (as amended) under Section 19 of the Criminal Procedure (Amendment) Act 2005 will invalidate or vitiate the order of process so issued? - HELD THAT - It has already been settled that when an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.P.C. the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court. Whether objections with regard to non-compliance of the amended provisions of sub-section (1) of Section 202 Cr.P.C. as incorporated by virtue of Section 19 of the Criminal Procedure (Amendment) Act 2005 may be raised at the initial stage only or after much deliberation as well? - HELD THAT - The satisfaction of the learned Magistrate concerned that there is a sufficient ground for proceeding with the complaint either by way of examination of complainant and the witnesses or by the enquiry contemplated under Section 202 Cr.P.C. is a condition precedent for issuing process under Section 204 Cr.P.C. It is a preliminary stage and the stage of hearing the accused would only arise at a subsequent stage provided for in the later provisions of the Cr.P.C. or in other words up to the stage of complying with the provisions of Section 204 Cr.P.C. the accused has no role to play. The question of making an application by the accused before the Learned Magistrate concerned for dismissal of the complaint under Section 203 Cr.P.C. or a reconsideration of the material available on record is impermissible on receipt of summons approaching the Court for the reason that by then Section 203 is over and the learned Magistrate concerned has proceeded further to Section 204 Cr.P.C. There are no hesitation to arrive at a conclusion that the first occasion for an aggrieved accused to raise objection for issuing summon against him comes after the provision of Section 204 is invoked. Since Cr.P.C. does not contemplate a review of an order passed by the learned Magistrate concerned taking cognizance of an offence issuing process without there being any allegation against accused or any material implicating the accused or any contravention of the provisions of Sections 200 and 202 the remedy lies in invoking Section 482 Cr.P.C. The scope of application of the amended provision of Sub-Section (1) of Section 202 Cr.P.C. as enacted under Section 19 of the Criminal Procedure (Amendment) Act 2005 in case of offences punishable under Sections 138/141 of the Negotiable Instruments Act 1881 - HELD THAT - Taking into consideration the non-obstante clauses used in Sections 142 142 (a) 143 144 145 and 147 of the said Act 1881 as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C. we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage. Thus in cases falling under Section 138 read with Section 141 of the N.I. Act the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned. Application disposed off.
Issues Involved:
1. Mandatory duty of Magistrate to conduct an inquiry under Section 202 Cr.P.C. before issuing process under Section 204 Cr.P.C. for accused residing outside territorial limits. 2. Nature of inquiry under Section 202 Cr.P.C. for such accused. 3. Consequences of non-compliance with the inquiry requirement under Section 202 Cr.P.C. 4. Timing of raising objections regarding non-compliance with Section 202 Cr.P.C. 5. Applicability of the amended Section 202 Cr.P.C. to offences under Sections 138/141 of the Negotiable Instruments Act, 1881. Detailed Analysis: A. Mandatory Duty of Magistrate to Conduct Inquiry: The amendment to Section 202(1) Cr.P.C. by the Criminal Procedure (Amendment) Act, 2005, mandates that a Magistrate must conduct an inquiry before issuing process under Section 204 Cr.P.C. if the accused resides outside the territorial jurisdiction of the Magistrate. This amendment aims to prevent harassment of innocent persons by false complaints. The use of the word "shall" indicates the mandatory nature of this requirement. The Supreme Court in cases such as National Bank of Oman v. Barakara Abdul Aziz and Udai Shankar Awasthi v. State of U.P. has affirmed that this inquiry is mandatory. B. Nature of Inquiry: The term "inquiry" under Section 202 Cr.P.C. means an examination of the complainant and witnesses to decide if there is sufficient ground for proceeding against the accused. The inquiry is limited to verifying the truthfulness of the allegations based on the materials presented by the complainant. The Magistrate may either conduct the inquiry himself or direct an investigation by a police officer or another person. This process is intended to filter out frivolous or meritless complaints, especially against those residing outside the Magistrate's jurisdiction. C. Consequences of Non-Compliance: Non-compliance with the mandatory inquiry requirement under Section 202 Cr.P.C. invalidates the order of process issued under Section 204 Cr.P.C. The Supreme Court in National Bank of Oman held that if a Magistrate issues process without conducting the required inquiry, the matter should be remitted back to the Magistrate for fresh consideration following the proper procedure. D. Timing of Raising Objections: Objections regarding non-compliance with the inquiry requirement under Section 202 Cr.P.C. must be raised at the earliest stage of the proceedings. According to Section 465 Cr.P.C., objections not raised at the earliest opportunity cannot be entertained after the trial is over or at a later stage after the accused has participated in the trial. The Supreme Court in Adalat Prasad v. Rooplal Jindal emphasized that the remedy for an aggrieved accused lies in invoking Section 482 Cr.P.C. for quashing the process. E. Applicability to Offences under Sections 138/141 of the Negotiable Instruments Act, 1881: The provisions of Section 202 Cr.P.C., as amended, do not mandatorily apply to cases under Sections 138/141 of the Negotiable Instruments Act, 1881. The scheme of prosecution under Section 138 is different from the Cr.P.C., with specific provisions for summary trials and affidavit evidence to expedite the process. The Supreme Court in various judgments, including M/S. Meters and Instruments Private Limited v. Kanchan Mehta, has highlighted that the special procedure under the Negotiable Instruments Act takes precedence over the general provisions of the Cr.P.C. Conclusion: The High Court concluded that the mandatory inquiry under Section 202(1) Cr.P.C. is aimed at preventing harassment through false complaints, and non-compliance invalidates the process issued. Objections must be raised early, and the special procedures under the Negotiable Instruments Act take precedence over the general Cr.P.C. provisions. The applications were sent back to the appropriate court for decisions based on these principles.
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