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2020 (2) TMI 1740 - HC - Indian LawsInvocation of extra ordinary jurisdiction under Section 482 of the Code of Civil Procedure 1973 - territorial jurisdiction to entertain the complaint filed under Sections 120(B)/406/420/34 of the IPC - HELD THAT - The object of inserting Section 202 of the Cr.P.C. is to avoid unnecessary harassment to persons who are arraigned as accused. The legislature in its wisdom has incorporated an extra precaution by which the Magistrate is required to come to a satisfaction after an enquiry or investigation as to whether there are sufficient materials to proceed against the accused persons. Examining from that perspective mere fact that the present petitioner have appeared before the learned Magistrate after receipt of summons will not obliterate the requirement of law of the learned Magistrate to come to a conclusion of availability of enough materials to proceed in the case. Though a submission has been made on behalf of the complainant that sufficient time has elapsed since filing of the complaint and in the meantime 7(seven) numbers of witnesses have already been examined and cross-examined what is required to be seen is the stage of the proceeding which in the instant case is at the stage of framing of charges after adducing the evidence by the witnesses. Therefore the ground of delay taken by the complainant cannot be countenanced. The Hon ble Supreme Court in the case of Abhjit Pawar 2016 (12) TMI 1774 - SUPREME COURT was dealing with an identical situation. It has been laid down that the issue being a pure illegal issue it can be raised for the first time even in the High Court. This Court is of the opinion that a case for interference in exercise of powers under Section 482 of the Cr.P.C. is made out due to noncompliance of the provisions of Section 202 of the Cr.P.C. This Court however makes it clear that the interference is only on the aforesaid provision and not on the question of lack of territorial jurisdiction which is left open to be decided by the appropriate Court. Conclusion - The compliance with Section 202 of the Cr.P.C. is mandatory when the accused resides outside the jurisdiction of the Magistrate. The purpose of this requirement is to prevent unnecessary harassment of individuals through false complaints. The learned Magistrate must adhere to the provisions of Section 202 of the Cr.P.C. before issuing process to the petitioners who are residents outside the jurisdiction of the Court. The impugned order is set aside - Petition disposed off.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment are: 1. Whether the learned Judicial Magistrate First Class (JMFC) at Yupia had the territorial jurisdiction to entertain the complaint filed under Sections 120(B)/406/420/34 of the IPC. 2. Whether the issuance of summons to the petitioners without adhering to the mandatory provisions of Section 202 of the Code of Criminal Procedure (Cr.P.C.) was valid, given that the accused resided outside the jurisdiction of the Magistrate. ISSUE-WISE DETAILED ANALYSIS Territorial Jurisdiction - Relevant Legal Framework and Precedents: The challenge to territorial jurisdiction is based on the argument that no part of the cause of action arose within the jurisdiction of the JMFC at Yupia, as the alleged transaction took place in Pasighat and Guwahati. - Court's Interpretation and Reasoning: The Court did not conclusively decide on the issue of territorial jurisdiction, leaving it open for determination by the appropriate court. - Key Evidence and Findings: The complainant argued that she resided at Itanagar, which falls under the jurisdiction of the JMFC at Yupia, thus justifying the filing of the complaint there. - Conclusion: The Court refrained from making a determination on territorial jurisdiction, focusing instead on the procedural compliance issue. Compliance with Section 202 of Cr.P.C. - Relevant Legal Framework and Precedents: Section 202 of the Cr.P.C. mandates that when an accused resides outside the jurisdiction of the Magistrate, an inquiry or investigation must be conducted before issuing process. The amendment in 2005 made this requirement mandatory, as affirmed by the Supreme Court in Abhjit Pawar v. Hemant Madhukar Nimbalkar. - Court's Interpretation and Reasoning: The Court emphasized the mandatory nature of Section 202 post-amendment, rejecting the argument that procedural non-compliance could be overlooked under Section 465 of the Cr.P.C., which deals with curing procedural irregularities. - Key Evidence and Findings: The petitioners argued that the Magistrate failed to conduct the necessary inquiry or investigation as mandated by Section 202, rendering the proceedings void ab initio. - Application of Law to Facts: The Court found that the Magistrate did not adhere to the mandatory requirement of conducting an inquiry or investigation before issuing summons, as the petitioners resided outside the jurisdiction. - Treatment of Competing Arguments: The complainant's argument that the procedural lapse should not obstruct justice was dismissed, as the Court held the provision to be mandatory. The Court also noted that the petitioners' participation in the proceedings did not waive the mandatory requirement. - Conclusion: The Court concluded that the failure to comply with Section 202 of the Cr.P.C. warranted interference under Section 482 of the Cr.P.C., leading to the setting aside of the order issuing process. SIGNIFICANT HOLDINGS - The Court held that compliance with Section 202 of the Cr.P.C. is mandatory when the accused resides outside the jurisdiction of the Magistrate. The purpose of this requirement is to prevent unnecessary harassment of individuals through false complaints, as emphasized in Abhjit Pawar v. Hemant Madhukar Nimbalkar. - The Court set aside the order dated 02.05.2017, which issued process against the petitioners, due to non-compliance with Section 202 of the Cr.P.C. - The Court directed that the learned Magistrate must adhere to the provisions of Section 202 of the Cr.P.C. before issuing process to the petitioners, who are residents outside the jurisdiction of the Court. - The trial was ordered to start de novo, in accordance with the law, following the proper procedural requirements.
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