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TMI Blog2019 (3) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds to be followed when the accused persons are not the residents of the area in which the Magistrate is expected to exercise the jurisdiction - Apparently the amended provision has added something in section 202 and that is the procedure which needs to be followed in such cases before 'issue process order' and that necessarily involves consumption of some time. After consideration of the material which is made available under section 200 if the Magistrate thinks it fit to go for further inquiry as provided under section 202 of the Cr.P.C. it was open to the Magistrate in the past also, to postpone issue of process even after giving of the material by the complainant for the purpose of section 200 of Cr.P.C. and ask the complainant to give material for inquiry as provided in section 202 of the Cr.P.C. For this stage also the complainant can file affidavits as provided in section 145 but the Magistrate has a power to ask the complainant and the witnesses to remain present before him and make query by asking questions with regard to the material produced during this inquiry. This power is necessarily there with the Magistrate in view of the scheme of that Chapter. It cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 5) In the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court is not expected to substitute its own intention with other interpretation. One more thing needs to be kept in mind that this procedure is a pre-trial procedure and so this provision cannot be connected with other objects like the object given in section 309 of the Cr.P.C. or in the scheme of the Negotiable Instruments Act, 1881 (particularly the provision of section 143(3) of this special enactment prescribing the period of six months for conclusion of the trial). The provision of section 143(3) is specifically made for trial of the cases and not for inquiry mentioned in section 202 of the Cr.P.C. It can be said that the Judicial Magistrate First Class is expected to deal with these matters by showing urgency even at pre-trial stage but on the basis of provision of section 143(3) inference is not possible that the said provision needs to be applied for ascertaining the intention behind the amendment of 2005. Apparently the amended provision has added something in section 202 and that is the procedure which needs to be followed in such cases before 'issue process order' and that necessarily involves consumption of some time. 7) The learned counsel for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Awasthi v. State of U.P.). (30) (2014) 14 SCC 638 (Vijay Dhanuka v. Najima Mamtaj). (31) (2017) 3 SCC 528 (Abhijit Pawar v. Hemant Madhukar Nimbalkar). (32) (2014) 2 SCC 62 (Sarah Mathew v. Institute of Cardio Vascular Diseases). (33) 2003(4) Mh.L.J. 1056 (Michael Jackson vs. M.J.F.(India) Ltd.). (34) (1998) 5 SCC 749 (Pepsi Foods Ltd. v. Special Judicial Magistrate). (35) (2017) 5 SCC 725 (K. Sitaram v. CFL Capital Financial Service Ltd.). (36) (2015) 12 SCC 420 (Mehmood Ul Rehman v. Khazir Mohammad Tunda). Fairly, the learned counsel for the petitioners took this Court through the cases on which the learned counsel for the respondent, original complainant was expected to place reliance. 8) Most of the Hon'ble Judges of this Court till this date have held that the amended provision of section 202 of the Cr.P.C. is mandatory in nature. Recently one Hon'ble Judge of this Court took a different view and that case is reported as 2016 STPL 9087 Bombay (Dr. Rajul v. Reliance Capital Limited and Others). The learned Single Judge has considered the case of the Apex Court reported as AIR 2014 SC (Cri) 1078 (Vijay Dhanu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In section 145 there are terms inquiry and trial and so it can be said that the evidence on affidavit can be used during inquiry which can be made under section 202 of Cr.P.C. This Court is not disputing that proposition as the provision itself is clear and the intention behind that provision can be said to be to expedite the things. However, this Court cannot ignore the intention behind inquiry mentioned in section 202 of Cr.P.C. That power is given to the Judicial Magistrate First Class and even before amendment of 2005 he had a discretion to postpone the issue of process and make inquiry into the matter. As the purpose of inquiry is to ascertain as to whether prima facie case is made out for issue of process, the Magistrate can ascertain that the ingredients of the offences are made out and the Court has jurisdiction to take cognizance of the matter. As the learned Single Judge has made a mention of the amended provision with regard to local jurisdiction with relation to cause of action for section 138 case, this Court is observing that the inquiry is not only for the purpose of ascertaining as to whether the Magistrate has local/ territorial jurisdiction but also to ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso given by the Apex Court. In that matter the Magistrate had examined the complainant on solemn affirmation and two witnesses were also examined and thereafter the Magistrate had directed issuance of process. The complaint was filed under section 138 of the Negotiable Instruments Act. The Apex Court has observed that in view of the provision of section 2(g) of the Cr.P.C. inquiry mentioned in section 202 of the Cr.P.C. is not the trial but no specific mode or manner of inquiry is provided under section 202 of the Cr.P.C. There cannot be dispute over this proposition. This case does not say that for present matter the provision of section 202 of the Cr.P.C. is not mandatory in nature. As already mentioned what is important is the satisfaction of the Magistrate that there is sufficient material to make out prima facie case for issue process and for that purpose he is expected to make inquiry as per the amended provisions. It cannot be said that the provisions of section 145 or 146 of the Negotiable Instruments Act are inconsistent with the 'inquiry' mentioned in section 202 of the Cr.P.C. and so it is not necessary to ascertain as to whether they supersede or control the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to larger bench and the matter is pending before the larger bench of the Apex Court and in view of these circumstances this Court has observed that there are two options open for such cases viz. (1) to stay the proceeding and wait for the decision of the Apex Court in view of the aforesaid cases decided by the Apex Court; or, (2) direct the Magistrate to follow the mandatory provision of section 202 of Cr.P.C. In the present matter this Court holds that the second option needs to be used . 13) It appears that one matter is filed directly in this Court and no revision was filed. On the point of tenability of the present matter reliance can be placed on the case reported as 2009 ALL MR (Cri.) 234 (SC) Dhariwal Tobacco Products Ltd. v. State of Maharashtra). In that case the Apex Court has discussed the provisions of section 482 and 397 of the Cr.P.C. and it is observed that when the proceeding is filed directly in High Court, proceeding cannot be dismissed only on the ground that alternative remedy of filing revision under section 397 is available. Thus the said matter also can be allowed by exercising jurisdiction under section 482 of the Cr.P.C. In the res ..... 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