Criminal Application (A.P.L.) No. 98 of 2011

21st November, 2011

Petitioner Counsel: Mr. R.P. Joshi
Respondent Counsel: Mr. Ujwal Phasate,P.K. Sathianathan

Cases Cited:
K.T. Joseph Vs. State of Kerala & another, (2009) 15 SCC 199 [Para 4]
S.C. Mathur (Capt) and another Vs. Elektronik Lab. & others others, 2010 (2) Bom,.C.R. (Cri) 385 [Para 4]
Neelu Chopra and another Vs. Bharti, 2010 ALL MR (Cri) 658 (S.C.)=(2009) 10 SCC 184 [Para 4]
Sau. Sangita w/o Ashok Borawar Vs. Sau.Surekha w/o Nandu Borawar and another, 2010 ALL MR (Cri) 3034 [Para 5]
Devarapalli Reddy Vs. Narayana Reddy and others, AIR 1976 SC 1672 [Para 5]

JUDGMENT

JUDGMENT :- By consent of respective counsel, the matter is taken up for final hearing.

2. By means of this Petition, the petitioners prayed for setting aside the impugned order of issuance of process dated 22.3.2010 passed by the learned Judicial Magistrate, First Class, Corporation Court No.2 Nagpur for the offence punishable under sections 403, 409, 420 read with Section 34 of the Indian Penal Code in R.C.C. No. 3165/2009 passed against the applicants.

3. It is the grievance of the applicants that both the accused against whom a complaint was lodged were resident of Hoshiarpur (Punjab ) and, as such, placed beyond the jurisdiction of the learned trial Magistrate. The trial Magistrate chose to issue process merely after perusing the complaint, recording verification and perusing the documents filed by the complainant. The impugned order was passed on the basis of prima facie documentary evidence against the accused.

4. Mr. R P Joshi, learned Advocate for the applicants submitted with reference to the ruling in K.T.Joseph vs. State of Kerala & another reported in (2009) 15 SCC page 199 wherein the Apex Court considered the necessity of enquiry under section 202 of the Code of Crime Procedure, 1973 ( in short" "Cr.P.C.") as Section 202 of Cr.P.C. was amended with effect from 23rd June 2006 by Central Amending Act 25/2005. Thus, considering the amended provision it is mandatory on the part of the learned Magistrate to conduct an enquiry under section 202 of the Cr.P.C. He shall consider the sworn statements of the witnesses at the stage of cognizance as it became mandatory particularly when the accused are resident of a place beyond the area in which the learned trial Magistrate is exercising his jurisdiction. The ruling is also followed in S.C. Mathur (Capt) and another vs. Elektronik Lab. & others others reported in 2010 (2) Bom,.C.R. (Cri) 385, wherein this Court held with reference to the ruling in K.T. Joseph vs. State of Kerala that the view of the Supreme Court is binding upon this Court and the said decision cannot be brushed aside. As against the accused who are the residents beyond the place in which the Magistrate concerned is exercising his jurisdiction it became mandatory; as the Apex Court observed, that the legal position is unexceptionable. Reference in this regard is also made to ruling in Neelu Chopra and another vs. Bharti reported in (2009) 10 SCC Page 184 : [2010 ALL MR (Cri) 658 (S.C.)] in support of the submission that the impugned order is liable to be quashed and set aside for nonobservance of mandatory legal position.

5. On behalf of the complainant/ respondent, learned Advocate submitted that the order regarding issuance of process is revisable and, therefore, the application under section 482 Cr.P.C. ought not to be entertained. Learned Advocate for respondent further submitted that in the ruling of Sau. Sangita w/o Ashok Borawar vs. Sau.Surekha w/o Nandu Borawar and another : 2010 ALL MR (Cri) 3034 the provisions regarding taking cognizance of the complaint in respect of offences were considered. My attention is invited to paragraph 11 of the said ruling regarding different modes prescribed by law and available with the Magistrate particularly before time of taking cognizance when Magistrate may order investigation under section 156 (3) of the Cr.P.C. and at the stage of taking cognizance, requirement is to proceed against under section 200 subsections of the Cr.P.C. as mentioned in paragraphs 11 and 12 of the ruling. It appears that the observations made by this Court were with reference to Devarapalli Reddy vs. Narayana Reddy and others : AIR 1976 SC 1672. The ruling in K.T.Joseph, it seems was not brought to the notice of the Court regarding amendment made in Section 202 Cr.P.C. for postponement of issuance of process particularly when accused are resident of a place beyond the local limits of jurisdiction of the Magistrate concerned.

6. Coming back to the facts of the present case, it cannot be disputed that the complaint was lodged in the Court of learned JMFC Corporation Court No.2, at Nagpur, whereas both the accused described in the complaint appear to have their residence at addresses in Hoshiarpur (Punjab). Under these circumstances, prima facie, it appears that the learned trial Magistrate ought to have postponed the issuance of process in view of the mandatory provision under section 202, as observed by the Apex Court in K.T. Joseph's case. After perusing the contents of the complaint as also verification statement of the complainant the learned trial Magistrate ought to have postponed the issuance of process in the facts and circumstances of the case when accused were resident of a place beyond the jurisdiction of the learned trial Magistrate concerned. For this reason and considering the rulings cited before me, the impugned order must be held unsustainable and, therefore, cannot be countenanced. The same is therefore, quashed and set aside. The learned JMFC, Corporation Court No.2, Nagpur shall exercise discretion in accordance with amended provision of Section 202 Cr.P.C. and in the light of the rulings referred above. The complainant shall appear before the learned JMFC, Corporation Court No.2 Nagpur, on 5th December, 2011. The Criminal Application is allowed. In the circumstances, there shall be no order as to costs.

Needless to mention that I have not entered into the merits of the matter.

Ordered accordingly.