Bombay High Court
Harish S/O Rameshrao Ukey And ... vs Sau. Kiranlata W/O Harish Ukey on 20 July, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.257 OF 2016
1. Harish s/o. Rameshrao Ukey,
Aged about 35 years,
Occupation : Business.
2. Smt. Shakuntala Rameshrao Ukey,
Aged adult,
Occupation : Household.
3. Sachin Rameshrao Ukey,
Aged about 40 years,
Occupation : Business.
4. Sau. Anita w/o. Sachin Ukey,
Aged about 35 years,
Occupation : Household.
5. Vijay Rameshrao Ukey,
Aged about 37 years,
Occupation : Business.
1 to 5 R/o. Plot No.62,
Ishwar Nagar, Ramana Maroti Road,
Behind Shiv Mandir, Nagpur,
Tq. And Distt. Nagpur.
6. Sau. Neeta w/o. Kishor Meshram,
Aged about 35 years,
Occupation : Household,
R/o. C/o. Police Commissioner, Pune,
Tq. And Distt. Pune.
7. Pramod Ukey,
Aged about, Occupation : Service,
R/o. C/o. Principal General Manager,
Telecom Department,
Door Sanchar Bhawan (B.S.N.L.),
Nagpur, Tq. And Distt. Nagpur.
::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 :::
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8. Pradeep Mankar,
Aged about years, Occupation : Service,
R/o. C/o. General Manager,
Ordinance Factory, Ambazari, Nagpur,
Tq. And Distt. Nagpur. : APPLICANTS
...VERSUS...
Sau. Kiranlata w/o. Harish Ukey,
Aged about 36 years,
Occupation : Household,
R/o. C/o. Adv. V.V. Meshram,
House No.10, Ward No.2, Satyadev Nagar,
Gudadhi, Akola, Tq. And Distt. Akola. : RESPONDENT
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Shri S.A. Mohta, Advocate for the Applicants.
Shri V.V. Meshram, Advocate for the Respondent.
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CORAM : S.B. SHUKRE, J.
th
DATE : 20
JULY, 2016.
ORAL JUDGMENT :
1. Admit. Heard finally by consent.
2. It is the contention of the learned counsel for the applicants
that while issuing process, by the order passed on 12 th January, 2015, the
learned 5th Judicial Magistrate, First Class, Akola has not followed the
mandate of Section 202 of the Criminal Procedure Code, which has been
newly amended by the Amendment Act, 2005 and, therefore, the order is
vitiated. He also submits that when it is an admitted fact that all the
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applicants, who are the proposed accused persons are not the residents
of the place within the territorial jurisdiction of Akola Court, this very
fact required the learned Magistrate, as per Section 202 Criminal
Procedure Code, to postpone the issuance of process and make an
enquiry either by himself or investigation through a Police Officer in
order to find out as to whether or not there is sufficient material for
proceeding further in the matter. Since this has not been done by the
learned Magistrate, the impugned order cannot be sustained in law. In
support, he places his reliance upon the cases of National Bank of Oman
vs. Barakara Abdul Aziz and another, reported in (2013) 2 SCC 488
and Udai Shankar Awasthi vs. State of Uttar Pradesh and another,
reported in (2013) 2 SCC 435. He also submits that the Akola Court
does not have territorial jurisdiction as the offence was not committed
within its territorial limit and the applicants are also not residents of any
place falling within territorial limit of Akola Court.
3. Learned counsel for the respondent submits that the
impugned order is legal and correct and as it has been judicially passed.
It is not open for this Court to substitute its view for the view taken by
the Judicial Magistrate. He also submits that there are sufficient grounds
for proceeding further in the matter and issuing process under Section
204 of the Criminal Procedure Code. As regards the inquiry to be made
under Section 202 of the Criminal Procedure Code, learned counsel
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submits that same has been made by the learned Magistrate. In support,
he places his reliance upon the case of Smt. Nagawwa vs. Veeranna
Shivallngappa Konjalgi, Judgment passed by the Hon'ble Supreme
Court of India on 23.4.1976, and the judgment of the Madras High
Court in the case of Appaiyam and another vs. R. Kalaichelvi, Crl.
O.P. Nos.36039/2007 and 777/20 08, decided on 6.2.2012.
4. Upon consideration of the impugned order and the
contentions raised in the plaint filed by the respondent, I find that there
is great substance in the argument of learned counsel for the applicants
and no merit in the submissions made on behalf of respondent.
5. It is seen from the body of the complaint that the respondent
has admitted the fact that all applicants, who are the proposed accused,
are residing at places falling outside the territorial jurisdiction of the
Court of Judicial Magistrate, Akola. Therefore, mandate of Section 202 of
the Code of Criminal Procedure would require the learned Magistrate to
postpone the issue of process and either enquire into the case himself or
direct an investigation to be made by a Police Officer or some other fit
person in order to decide as to whether or not there is sufficient ground
for proceeding further. Such postponement of issue of process in a case
where the accused is residing beyond the territorial jurisdiction of the
Court of Judicial Magistrate has been made mandatory under the newly
amended Section 202 of the Code of Criminal Procedure, which has been
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inserted in the Code of Criminal Procedure by Act 25 of 2005 with effect
from 23.6.2006. It is seen from the impugned order that this
requirement has not been followed by the learned Magistrate.
6. In the case of Udai Shankar Awasthi (supra), the Hon'ble
Apex Court has held that it is obligatory for the Magistrate to enquire
into the case himself or direct investigation to be made by a Police
Officer or some other fit person when the accused resides at a place
beyond territorial jurisdiction of the concerned Magistrate. The relevant
observations of the Hon'ble Apex Court appearing in paragraph 26 of the
Judgment are reproduced thus :
"While deciding the case in Gokak Patel
Volkart Ltd., this Court placed reliance upon its earlier
judgment in State of Bihar v. Deokaran Nenshi,
wherein the Court while dealing with the case of
continuance of an offence has held as under :
5. A continuing offence is one which is
susceptible of continuance and is distinguishable from
the one which is committed once and for all. It is one
of those offences which arises out of a failure to obey or
comply with a rule or its requirement and which
involves a penalty, the liability for which continues
until the rule or its requirement is obeyed or complied
with. On every occasion that such disobedience or non-
compliance occurs and reoccurs, there is the offence
committed. The distinction between the two kinds of
offences is between an act or omission which
constitutes an offence once and for all and an act or
omission which continues, and therefore, constitutes a
fresh offence every time or occasion on which it
continues. In the case of a continuing offence, there is
thus the ingredient of continuance of the offence which
is absent in the case of an offence which takes place
when an act or omission is committed once and for
all."
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7. Before the judgment in the case of Udai Shankar Awasthi
(supra) was rendered, Hon'ble Apex Court in the case of National Bank
of Oman (supra) had propounded the same law. In that case,
Aurangabad Bench of this Court had taken a view that since the accused
was residing in an area falling beyond the jurisdiction of the Chief
Judicial Magistrate, Ahmednagar, it was necessary for the learned
Magistrate to carry out an enquiry or order investigation as contemplated
under Section 202 of the Criminal Procedure Code before issuing the
process. The view so taken by this Court was found to be correct by the
Hon'ble Supreme Court, when it observed in paragraph 8 that it was
incumbent upon the learned Magistrate to carry out an enquiry or order
investigation as contemplated under Section 202 of the Criminal
Procedure Code before issuing the process. The Hon'ble Apex Court also
delineated the scope of enquiry under Section 202 of the Criminal
Procedure Code by observing that it is limited to the ascertainment of
truth or otherwise of the allegations made in the complaint. The
observations of the Hon'ble Supreme Court made in this regard appear in
paragraphs 8 and 9 of the Judgment and they are reproduced as below :
" 8. We find no error in the view taken by
the High Court that the CJM Ahmednagar had not
carried out any enquiry or ordered investigation as
contemplated under Section 202 CrPC before issuing
the process, considering the fact that the respondent is
a resident of District Dakshin Kannada, which does not
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fall within the jurisdiction of the CJM, Ahmednagar. It
was, therefore, incumbent upon him to carry out an
enquiry or order investigation as contemplated under
Section 202 CrPC before issuing the process.
9. The duty of a Magistrate receiving a complaint is
set out in Section 202 CrPC 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 CrPC 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 CrPC 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 put; 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."
8. So, it is clear that the newly amended Section 202 of
Criminal Procedure Code makes it obligatory for the Criminal Court
empowered to take cognizance of the complaint to postpone the issue of
process in a case where the accused resides at a place falling beyond the
territorial jurisdiction of that Court to order an enquiry or direct an
investigation as contemplated in the said Section. The Hon'ble Apex
Court in the case of National Bank of Oman (supra) has also directed
(paragraph 12) that the High Court, instead of quashing the complaint in
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such a case, should remit the matter to the concerned Magistrate for
passing an order afresh in accordance with law. It would thus follow
that with such a direction, it would be necessary for this Court to quash
the impugned order and remand the matter back to the learned
Magistrate for its being considered afresh in accordance with law.
9. As regards the cases relied upon by the learned counsel for
the respondent, I must say with due respect that the case of Smt.
Nagawwa (supra), having been decided before newly amended Section
202 came into being, would have no application to the facts of the
present case. About the second case of Appaiyam and another (supra), I
find that the facts of that case are different in the sense that those facts
disclosed that the complaint had been prepared with a malafide intention
and that sufficient grounds were not made out for proceeding against the
applicants and, therefore, the High Court thought it fit to reject the
contention of the applicants that the order of dismissal of the complaint
was illegal and improper. In the instant case, the learned Magistrate has
chosen to proceed further in the matter without following the mandate
of Section 202 of the Criminal Procedure Code, which was not an issue
involved in the said case of Appaiyam and another (supra). Therefore,
even that case would not be of any assistance to the respondent herein.
10. It is also the contention of the learned counsel for the
applicant that Akola Court does not have any territorial jurisdiction in
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this case to which, the answer has been provided by the learned counsel
for the respondent as lying in Section 182(2) of the Code of Criminal
Procedure. I do not think it necessary to decide this point as, for the
reasons stated earlier, I have already found that this is a fit case for being
remanded to the Court of Judicial Magistrate, First Class for considering
the matter afresh in accordance with law. So, this point would also have
to be kept open for deciding it appropriately.
11. In the circumstances, I find that this application deserves to
be allowed and it is allowed accordingly.
12. The impugned order dated 12.1.2015, passed by the 5th
Judicial Magistrate, First Class, Akola, is quashed and set aside.
13. The matter is remanded back to the learned 5 th Judicial
Magistrate, First Class, Akola for considering it afresh in accordance with
law, without being influened in any manner by the observations made in
this judgment.
JUDGE
okMksns
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