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TMI Blog2022 (11) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 (4) TMI 702 - SUPREME COURT] has clarified that during inquiry under Section 202 of the Code evidence of witnesses can be taken on affidavit in terms of Section 145 of the N.I. Act. Thus, there is no requirement to hold separate inquiry nor the Code provides as to in which manner the inquiry has to be conducted. The only requirement of amended Section 202 of the Code is that when the accused is residing at a place beyond the jurisdiction of the Magistrate, either he shall inquire into the case himself or direct an investigation to be made by the Police Officer - filing of affidavit under Section 145 of the N.I. Act can be treated as an evidence and therefore, perusal of affidavit along with documents amounts to holding an inquiry for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out issuance of process in terms of Section 204 of the Code of Criminal Procedure (for short hereinafter referred to as the Code ) relating to offence punishable under Section 138 of the Negotiable Instruments Act (for short the N.I. Act ). 3. The petitioner who is an accused of Criminal Case No. 1075/SS/2017 has raised a challenge on the ground that the petitioners (accused) resides outside the territorial jurisdiction of the concerned Magistrate and therefore, in view of the amendment to Section 202 of the Code, the order of issuance of process without complying mandatory requirement of inquiry is unsustainable in the eyes of law. 4. The respondent has filed Criminal Complaint for the offence punishable under Section 138 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 202 of the Code is mandatory one. Moreover, it is submitted that the affidavit though filed by the respondent (complainant), it does not amount to an inquiry contemplated under Section 202 of the Code. 6. Having regard to the divergent opinions regarding requirement of inquiry under Section 202 of the Code, the Supreme Court in Suo Motu Writ Petition (CRL.) No. 2 of 2020 and in case of Sunil Todi (supra) has clarified that inquiry as per amended Section 202 of the Code is mandatory when the accused resides outside the jurisdiction of the Court. Moreover, it is ruled that, for inquiry under Section 202 of the Code, evidence of witnesses shall be permitted to be taken on affidavit. In suitable cases, the inquiry can be restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel appearing for the petitioners would submit that on the date of filing of criminal complaint, it was not accompanied by the affidavit, however it was subsequently filed on 10.08.2017 and therefore, the complaint is not tenable. In other words, he would submit that the Magistrate was not empowered to take cognizance of the complaint in absence of affidavit. It reveals from the Roznama that the criminal complaint was filed on 08.06.2017 on which it was postponed on 11.08.2017 for verification. The record indicates that prior to 11.08.2017 i.e. on 10.08.2017 itself affidavit was filed by the complainant on which the Magistrate has issued the process. 9. Section 202 of the Code nowhere puts restriction on the Court of taking cogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of process does not indicate reasons for passing an order of issuance of process and therefore, it is not tenable. Learned Counsel for the petitioner also relied on the decision of this Court in case of Rainbow Papers Limited and ors. vs. State of Maharashtra 2021 ALL MR (Cri) 3527. In said case the impugned order does not reflects that mandatory inquiry was conducted and therefore, on the basis of given facts the order of issuance of process was set aside. Being distinct facts, the said decision is of no assistance. 11. It is totally a factual aspect to see whether the Magistrate has followed the mandate of conducting inquiry. Though the reasons are required for issuance of process however at this stage it is expected to record the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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