Bombay High Court
Chandrakant vs The State Of Maharashtra on 21 November, 2013
Bench: A.M. Thipsay
1 Cri.W.P.463.13.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 463 OF 2013
1. Chandrakant S/o Tanhaji Pawar
Age : 30 years, Occ : Agriculture & Service,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
2. Tanaji S/o Namdeo Pawar
Age : 60 years, Occ : Agri,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
3. Vimalbai W/o Tanaji Pawar
Age : 53 years, Occ : Household,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
4. Namdeo S/o Bhaguji Pawar
Age : 78 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
5. Dhanaji S/o Tanaji Pawar
Age : 33 years, Occ : Agri., & Girni,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
6. Shobha W/o Dhanaji Pawar
Age : 29 years, Occ : Household,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
7. Santosh S/o Tanaji Pawar
Age : 32 years, Occ : Agri., & Service,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
8. Manisha Santosh Pawar
Age : 27 years, Occ : Household,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
9. Shivaji S/o Namdeo Pawar
Age : 62 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
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10. Sumanbai W/o Shivaji Pawar
Age : 55 years, Occ : Household,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
11. Dattatraya S/o Namdeo Pawar
Age : 55 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
12. Savita W/o Dattatraya Pawar
Age : 48 years, Occ : Household,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
13. Nandkumar S/o Shivaji Pawar
Age : 32 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
14. Manisha W/o Nandkumar Pawar
Age : 29 years, Occ : Service,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
15. Rajendra S/o Shivaji Pawar
Age : 30 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
16. Sharad S/o Dadasaheb Pawar
Age : 24 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
17. Sambhaji S/o Dashrath Mhaske
Age : 28 years, Occ : Agri.,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
18. Swati W/o Sambhaji Mhaske
Age : 22 years, Occ : Household,
R/o Mirajgaon (Old Kada Road),
Tq. Karjat, Dist. Ahmednagar.
19. Dadasaheb S/o Babasaheb Khedkar
Age : 45 years, Occ : Agri.,
R/o Sangvi, Tq. Ashti, Dist. Beed.
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3 Cri.W.P.463.13.odt
20. Bapurao S/o Babasaheb Khedkar
Age : 42 years, Occ : Agri.,
R/o Sangvi, Tq. Ashti, Dist. Beed.
21. Ramesh S/o Babasaheb Khedkar
Age : 40 years, Occ : Agri.,
R/o Sangvi, Tq. Ashti, Dist. Beed.
22. Bhimrao S/o Maruti Dhembre
Age : Major, Occ : Agri.,
R/o Rajegaon, Tq. Daund,
Dist. Pune.
23. Subhash S/o Deoram Shinde
Age : 27 years, Occ : Agri.,
R/o At Post Takli Kazi,
Tq. Nagar, Dist. Ahmednagar.
..PETITIONERS
-VERSUS-
1. The State of Maharashtra
2. Sou. Swapanali W/o Chandrakant Pawar
Age : 25 years, Occ : Nil,
R/o C/o Prabhakar S/o Madhavrao Marathe
At Post Shrigonda Factory,
Tq. Shrigonda, Dist. Ahmednagar.
..RESPONDENTS
...
Advocate for Petitioners : Mr. N.V. Gaware
APP for Respondent No.1 : Mr. S.R. Palnitkar
Advocate for Respondent No.2 : Mr. R.R. Karpe
...
CORAM : ABHAY M. THIPSAY, J.
Dated: November 21, 2013
ORAL JUDGMENT :-
Rule. By consent, Rule made returnable
forthwith. By consent, heard finally.
2. The petitioners are the accused in
4 Cri.W.P.463.13.odt
R.T.C. No. 315 of 2012 pending before the Judicial
Magistrate, First Class, Shrigonda, Dist.
Ahmednagar. The said case arises on the basis of
a complaint lodged by the respondent no.2 herein,
alleging commission of offences punishable under
section 494 of the Indian Penal Code (IPC) and
section 495 of IPC, read with section 109 of IPC.
The Magistrate, after examining the respondent
no.2 on oath, in accordance with the provisions of
section 200 of the Code of Criminal Procedure
(hereinafter referred to as "the Code"), directed
to issue process against the petitioners with
respect to the aforesaid offences, by an order
dated 05.01.2013.
Being aggrieved by the said order, the
petitioners have approached this Court invoking
its constitutional jurisdiction.
3. Heard Mr. N.V. Gaware, the learned
counsel for the petitioners. Heard Mr. S.R.
Palnitkar, the learned Additional Public
5 Cri.W.P.463.13.odt
Prosecutor for Respondent/State. Heard Mr.R.R.
Karpe, the learned counsel for the respondent
No.2.
4. The learned counsel for the petitioners
submitted that it was apparent from the complaint
itself that barring two persons, named as accused,
all other accused were residing beyond the
territorial jurisdiction of the learned
Magistrate, who issued the process. He submitted
that after the amendment of section 202 of the
Code by Act 25 of 2005, the legal position is that
in a case where the accused is residing at a place
beyond the area in which the Magistrate exercises
his jurisdiction, it would be incumbent upon the
Magistrate to postpone the issue of process
against the accused, and either to hold an inquiry
into the matter or direct an investigation to be
made by a police Officer or any other person for
the purpose of deciding, whether or not, there are
sufficient grounds for proceeding. He submitted
that since admittedly the process came to be
6 Cri.W.P.463.13.odt
issued without holding any inquiry or
investigation as contemplated in section 202 of
the Code, the order issuing process is bad in law
and needs to be set aside.
5. Mr. R.R. Karpe, the learned counsel for
the respondent no.2 attempted to suggest that the
provision requiring holding of an inquiry is
merely directory and not mandatory. He submitted
that failure to hold inquiry would not necessarily
vitiate the order issuing process. He placed
reliance on the decision rendered by a learned
Single Judge of this Court in the case of Bansilal
S. Kabra V/s Global Trade Finance Ltd., anr.
{2010(2) Bom.C.R. (Cri.) 754} in support of this
contention.
6. Indeed, in the case of Bansilal Kabra
(supra), such a view was taken by the learned
Single Judge, but as pointed out by the learned
counsel for the petitioners, contrary view has
7 Cri.W.P.463.13.odt
been taken in several other decisions rendered by
different learned Single Judges of this Court. In
any case, the learned counsel for the petitioners
pointed out that a Division Bench of this Court in
Barakara Abdul Aziz V/s National Bank of Osman
(S.A.O.G.) anr. {2013(2) LJSOFT 95} has clearly
held the relevant provision to be mandatory,
observing that the said provision casts an
obligation on the Magistrate to 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 are sufficient
grounds for proceedings in a case where the
accused is residing at a place beyond the area in
which the Magistrate exercises his jurisdiction.
7. Mr. Gaware also pointed out a recent
judgment of the Supreme Court of India in the case
of Udai Shankar Awasthi V/s State of U.P. & anr.
8 Cri.W.P.463.13.odt
{2013(6) LJSOFT (S.C.) 296, wherein also Their
Lordships have opined the relevant provisions to
be mandatory (Para No.26 of the reported
judgment).
8. Thus, there can be no doubt that failure
to hold an inquiry before issuing process, where
the accused person/persons are residing beyond the
territorial jurisdiction of the Magistrate
concerned, would vitiate the order issuing
process. In view of this settled position of law,
the impugned order needs to be set aside.
9. The Petition succeeds.
The order issuing process, as passed by
the learned Magistrate, is set aside.
The learned Magistrate shall deal with
the complaint in accordance with law and keeping
in mind the provisions of section 202 of the Code.
9 Cri.W.P.463.13.odt
10. The Writ Petition is allowed in the
aforesaid terms.
11. Rule is made absolute accordingly.
Sd/-
( ABHAY M. THIPSAY, J. )
***
sga/-
