Bombay High Court
M/S International Tractors Ltd vs State Of Kerala & Another on 21 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPLICATION (A.P.L.) NO. 98 /2011
1) M/s International Tractors Ltd
Through Mr Malkiat Singh (AGM)
Authorised signatory of the company.
2) Deepak Mittal,
Managing Director, M/s International
Tractors Limited
Address of both No.1 and 2
At village Chakgurjan
P.S. Piplanwala,
Jalundhar Road
Hoshiarpur (Punjab State) 146 022.. ..APPLICANTS
v e r s u s
Harivansh Agencies
Through Its Proprietor
Shri Vijay Bajranglal Murarka
occu: Business Near Wadi Telephone Exchange
MIDC Nagpur. ..... RESPONDENT
............................................................................................................................
Mr. R.P.Joshi, Advocate for applicants
Mr. Ujwal Phasate,Adv.h/for P K Sathianathan, Adv.for
Respondent
.......................................................................................................................
CORAM: A.P.BHANGALE , J.
DATED : 21 November, 2011
st
ORAL 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 in support of the submission that the impugned
order is liable to be quashed and set aside for non-observance 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 sub-
sections 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 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
appears 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
ig th
JMFC, Corporation Court No.2 Nagpur, on 5 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.
JUDGE
sahare
