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2023 (8) TMI 1623 - SCH - Indian LawsIssuance of summons - some of the accused were residing at a place beyond the area covered by the jurisdiction of the learned Magistrate - non-compliance with the mandatory requirement of Section 202(1) of CRPC - HELD THAT - There cannot be any doubt that in view of the use of word shall in sub-section 1 of Section 202 of the CRPC and the object of amendment made by the Act No. 25 of 2005 the provision will have to be held as mandatory in a case where the accused is residing at a place outside the jurisdiction of the learned Magistrate. In fact in paragraph No.12 of the aforesaid decision relied upon by the learned counsel appearing for the petitioner this Court held that in a case where one of the accused is a resident of a place outside the jurisdiction of the learned Magistrate following the procedure under subsection 1 of Section 202 of the CRPC is mandatory. In the case of Vijay Dhanuka 2014 (3) TMI 1103 - SUPREME COURT this Court found that before issuing summons the learned Magistrate had examined the complainant and two other witnesses on oath and therefore on facts this Court found that a substantial compliance with sub-section 1 of Section 202 of the CRPC was made. Conclusion - In this case even substantial compliance has not been made by the learned Magistrate. It is true that evidence was recorded before charge and at that stage an objection was raised by the respondents. Considering the mandatory nature of sub-section 1 of Section 202 of the CRPC in the facts of this case non-compliance thereof will result into failure of justice. Hence there are no error in the impugned order of remand passed by the High Court. SLP dismissed.
ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court were:
ISSUE-WISE DETAILED ANALYSIS 1. Compliance with Section 202(1) of the CRPC The relevant legal framework involves Section 202(1) of the CRPC, which mandates an inquiry by the Magistrate before issuing summons if the accused resides outside the jurisdiction. The Court emphasized the use of the word "shall" in the provision, indicating its mandatory nature, especially after the amendment by Act No. 25 of 2005. The Court referenced the decision in Vijay Dhanuka & Ors. v. Najima Mamtaj, where substantial compliance was deemed sufficient if the complainant and witnesses were examined on oath before issuing summons. In the present case, the Court found that there was no substantial compliance with Section 202(1) of the CRPC by the Magistrate. The examination of witnesses before the charge did not fulfill the requirement of conducting an inquiry or investigation before issuing summons. The Court concluded that non-compliance with this mandatory provision constituted a failure of justice. 2. Timing of the Objection Raised The petitioner argued that the objection regarding non-compliance with Section 202(1) was raised too late, after the examination of seven witnesses. The Court, however, did not find merit in this argument. It highlighted that the mandatory nature of the provision necessitated compliance irrespective of the stage at which the objection was raised. The Court's reasoning was that procedural mandates cannot be bypassed based on the timing of objections, as they are crucial for ensuring justice. 3. High Court's Decision to Quash and Remand The High Court's decision to quash the order issuing summons was based on the precedent set in Abhijit Pawar v. Hemant Madhukar Nimbalkar & Anr., which reinforced the mandatory compliance with Section 202(1) of the CRPC. The Supreme Court upheld the High Court's decision, agreeing that the non-compliance warranted a remand to the Magistrate to proceed from the stage of Section 202 inquiry. The Court found no error in the High Court's order, as it aligned with the legal requirement and precedent. SIGNIFICANT HOLDINGS The Court reiterated the mandatory nature of Section 202(1) of the CRPC when the accused resides outside the jurisdiction of the Magistrate. The core principle established is that compliance with procedural mandates is essential to prevent a failure of justice, and objections regarding non-compliance can be raised at any stage before the trial. The Court's final determination was to dismiss the Special Leave Petition, affirming the High Court's order to remand the complaint for compliance with Section 202(1) of the CRPC. The Court expressed confidence that the Magistrate would prioritize the disposal of the case, considering its pendency since 2017.
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