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TMI Blog2024 (2) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of allegations in the complaint and take into account the evidence, both oral and documentary, to find out if it is sufficient for the complainant to succeed in establishing the charge against the accused, and justify the issuance of process against him. It is nonetheless the duty of the Magistrate to prima facie find out, if the case is made out by the complainant against the accused before the process is issued, so as to avoid any frivolous or vexatious claims being taken forward by the Magistrate. Vindication of majesty of justice and maintenance of law and order in the Society, being the primary object of criminal justice, would not bring within its sweep, a personal vengeance. The reference is answered accordingly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard learned Advocate Shri Arun Mehta along with Advocate Aniket Srivastav for the applicant, Mr. H.S. Venegaonkar, Public Prosecutor for the State and Mr.Yashpal Thakur with Advocate Mukund Pandya for the respondent no.1. We have also perused the distinct orders passed by the respective Single Judge of this Court, resulting into this reference. With the passage of the time, since the reference was made, there is further evolution of law on the aspect involved and though there are decisions from this Court as well as the higher Court, which have categorically held that the provision is mandatory in nature, in our opinion, the conundrum has been put to rest by the Constitution Bench of the Apex Court in suo motu Writ Petition (CRL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici. 4. Another aspect, in order to curtail the delays in conclusion of the trials under the Act of 1881, which was adverted to, is in relation to interpretation of Section 202(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the concerned Magistrate(s) to decide, as to what type of procedure they need to adopt in the complaints, pending adjudication before them, where the accused persons are located outside their territorial jurisdiction, and the Criminal Appeals were disposed off. 6 In order to have implementation of the orders issued by the Constitution Bench in suo motu Writ Petition dated 16/4/2021, the Registrar General of the Bombay High Court has also issued a circular on 27/1/2022, clearly issuing the following directions:- 2. On receipt of any complaint under Section 138 of N.I. Act, wherever it is found that any accused is resident of the area beyond the territorial jurisdiction of the magistrate concerned, an inquiry shall be conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opinion to that effect, the Magistrate may himself hold an inquiry u/s. 202 of the Code, or direct investigation to be made by a police officer. We may also add that in a contingency, when he decides to conduct an inquiry, specifically against the persons residing outside his territorial jurisdiction, the inquiry must be aimed at ascertaining the truth or otherwise in the allegations made in the complaint. It is expected that the Magistrate shall not only rely upon the averments in the complaint, as it may many a times, contain unfounded allegations which require ascertaining of its veracity, before the process is issued, so as to separate the chaff from the grain. Before the Magistrate acts on the complaint, by issuing process aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nonetheless the duty of the Magistrate to prima facie find out, if the case is made out by the complainant against the accused before the process is issued, so as to avoid any frivolous or vexatious claims being taken forward by the Magistrate. Only on being satisfied that the offence is made out against the person(s) named in the complaint, the process would be issued and at this stage, all the relevant facts and circumstances shall be taken into consideration before issuing process, lest it would be an instrument in the hands of a private complainant, as vendetta to harass the named accused. Vindication of majesty of justice and maintenance of law and order in the Society, being the primary object of criminal justice, would not bring wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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