Criminal Application No.6821 of 2013

20th March, 2014.

Petitioner Counsel: Shri A.M. GHOLAP
Respondent Counsel: Shri S.B. YAWALKAR, Mrs. S.G. CHINCHOLKAR

Cases Cited:
National Bank of Oman Vs. Barakara Abdul Aziz & anr., (2013) 2 SCC 488 [Para 3,4,8]

JUDGMENT

JUDGMENT :- Heard learned counsel for the applicants, learned counsel for respondent No.1 and learned A.P.P. for respondent No.2/State finally.

2. In this matter, the respondent No.1- complainant filed R.C.C. No.239/2012 against the present applicants (original accused Nos.1 and 3). The Chief Judicial Magistrate, Jalgaon did not issue process against accused No.2 Mrs. Trivenidevi observing that her contribution behind this offence is not well founded and she could not be arrayed as accused. Against the order of issue of process against applicants, the present application has been filed.

3. Learned counsel for the applicants is relying on the case of National Bank of Oman Vs. Barakara Abdul Aziz & anr., reported in (2013) 2 SCC 488. He submits that, perusal of the complaint shows that the accused persons were not residents of the local jurisdiction of the Court and in view of the amendment to Section 202 of the Criminal Procedure Code, 1973 (Cr.P.C. for short), it was incumbent upon the Magistrate to carry out an enquiry himself or direct investigation under Section 202 before issuing process. Relying on the above judgment, learned counsel submitted that, in the present matter also no such procedure was followed and hence, the process issued is not maintainable.

4. Learned counsel for respondent No.1 submitted that, in view of the judgment in the matter of "National Bank of Oman" (supra), the Court may pass suitable orders.

5. Perusal of the complaint in R.C.C. No.239/2012 shows that the complainant mentioned as to which witnesses will be relied on. But the Chief Judicial Magistrate, after recording verification, directly issued order of process against the accused Nos.1 and 3 (present applicants) although both of them were not residing within local jurisdiction of the Chief Judicial Magistrate.

6. Section 202(1) of the Criminal Procedure Code reads as under :

"202. Postponement of issue of process._

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either 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 :

(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."

7. In the judgment under reference, in para Nos.9 and 10, the Hon'ble Supreme Court observed as under :

"9. The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal Court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint :

(i) on the materials placed by the complainant before the Court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.

10. Section 202 Cr.P.C. was amended by the Code of Criminal Procedure (Amendment) Act, 2005 and the following words were inserted :

"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,"

The notes on clauses for the above mentioned amendment read as follows :

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."

The amendment has come into force w.e.f. 23.6.2006 vide Notification No.S.O.923(E) dated 21.6.2006."

8. As there was non compliance with Section 202(1) of Cr.P.C., the Hon'ble the Supreme Court directed in the matter of "National Bank of Oman" (supra) that the matter deserves to be remitted back to the Magistrate for fresh orders after following the provisions of Section 202 of the Cr.P.C.

9. Keeping in view the provisions and observations of the Hon'ble Supreme Court, the present criminal application is allowed in following terms :

The impugned order of issue of process, dated 11.10.2012 in Regular Criminal Case No.239/2012 by Chief Judicial Magistrate, Jalgaon is quashed and set aside. The matter is remitted back to the Chief Judicial Magistrate, Jalgaon. The Magistrate shall pass fresh orders after following the provisions of Section 202 of the Criminal Procedure Code. The Chief Judicial Magistrate, Jalgaon will pass fresh orders after complying the procedure laid down in Section 202 of the Criminal Procedure Code within two months from the date of receipt of this order.

Ordered accordingly.