Bombay High Court
Shobhabai W/O Gangadhar Jakare ... vs The State Of Maharashtra & Anr on 6 June, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 791 OF 2015
SHOBHABAI W/O GANGADHAR JAKARE AND ANOTHER
-VERSUS-
THE STATE OF MAHARASHTRA & ANOTHER
...
Advocate for Petitioners : Shri Venjane Tukaram M.
APP for Respondent No.1/ State : Shri S.N.Kendre.
...
CORAM: RAVINDRA V. GHUGE, J.
ig DATE :- 06th June, 2016
Oral Order:
1 This Court (Coram : T.V.Nalawade, J.) by it's order dated
01.07.2015 had stayed the proceedings in SCC No.196/2014 pending
before the Court of the learned Judicial Magistrate First Class, Biloli by
passing the following order:-
"1. Notice. Learned Additional Public Prosecutor waives
notice for respondent No.1. Notice to respondent No.2
is made returnable on 05th August, 2015.
2. Learned counsel for the petitioners argued for interim
stay of the proceeding on the ground that inquiry as
required under section 202 of the Code of Criminal
Procedure was not made even when the present
petitioners, accused are not residing within local
jurisdiction of the learned Judicial Magistrate. In
view of this submission stay is granted to the
proceedings of SCC No.196/2014 pending in the
Court of the learned Judicial Magistrate First Class
till next date."
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2 Respondent No.2, who is the Complainant in SCC
No.196/2014, has chosen not to cause an appearance either through an
Advocate or in person despite service of the court notice which was issued
on 01.07.2015.
3 Shri Venjane, learned Advocate for the Petitioners, submits
that Respondent No.2 has lodged a complaint on 12.09.2014 under
Sections 294, 323, 506 r/w 34 of the Indian Penal Code against the
Petitioners and Mr.Kailash Ramrao Kotwale. Mr.Kotwale is not party to the
present proceedings.
4 The learned Advocate submits that though allegations have
been made against the Petitioners along with Mr.Kotwale, no allegations
have been set out in the verification dated 12.09.2014 before the learned
Court so as to make out any case against the Petitioners. Yet, process has
been issued against the Petitioners vide the impugned order dated
18.09.2014.
5 He further submits that the Petitioners reside beyond the
territorial jurisdiction of the learned Court and as such, the process could
not have been issued against the Petitioners without conducting an
enquiry under Section 202 of the Code of Criminal Procedure.
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6 Shri Venjane places reliance upon the judgment of this Court
in the matter of Vimal Powerloom vs. Ravi Agency, 2014 All M.R. (Cri.)
1696, to support his contention that the Honourable Supreme Court as
well as this Court have consistently held that unless an enquiry is
conducted under Section 202 of the Code of Criminal Procedure in view of
the amended portion brought into effect from 23.06.2006, 'Process' could
not have been issued against the Petitioners.
7 He, therefore, submits that the order of issuance of process
dated 18.09.2014 passed by the learned Court deserves to be quashed and
set aside as against the Petitioners.
8 The learned APP has opposed this petition by contending that
the issuance of process by the competent court indicates that it has gone
through the complaint and the verification of the complainant and has
ordered issuance of process by applying it's mind to the accusations made
against the Petitioners. He submits that just because an enquiry was not
conducted under Section 202, the impugned order need not be interfered
with.
9 I have considered the submissions of the learned Advocates.
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10 Section 202 of the Code of Criminal Procedure 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:
Provided that no such direction for
investigation shall be made -
(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.
(2) In an inquiry under sub-section (1), the Magistrate
may, if he thinks fit, take evidence of witnesses on
oath :
Provided that if it appears to the Magistrate
that the offence complained of is triable exclusively by
the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine
them on oath.
(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on
an officer in-charge of a police station except the
power to arrest without warrant. "
* Inserted by Act 25 of 2005, S.19 (w.e.f.23.06.2006).
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11 The contention of the Petitioners is that as the Petitioners are
residing beyond the area in which the learned Court could exercise it's
jurisdiction, an enquiry under Section 202 would be necessary and
significant. From the impugned order, I do not find that the learned Court
has applied it's mind to the territorial jurisdiction vested in it by law and
as to whether, the Petitioners, who are accused persons, are residing
beyond the area in which the learned Court exercised it's jurisdiction.
12 The Honourable Supreme Court in the matter of National
Bank of Oman vs. Barakara Abdul Aziz, (2013) 2 SCC 488, considered the
issue as to whether, it was incumbent upon the Magistrate to conduct an
enquiry or order an investigation under Section 202 of the Code of
Criminal Procedure (amended Section 202) before issuing process in the
matter. So also, the Honourable Apex Court has considered the aspect as
to whether such a complaint, in which the accused resides beyond the
area over which the Magistrate concerned exercises jurisdiction, should be
quashed or whether, the matter deserves to be remitted to the Magistrate
for passing fresh orders by following the provisions of Section 202.
13 The Honourable Supreme Court concluded in the above said
case that where an accused resides beyond the area over which a
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Magistrate concerned exercises it's jurisdiction, it is incumbent upon the
Magistrate to carry out an enquiry or order an investigation before issuing
process. It was held that there was an obligation on the Magistrate to find
out whether, the matter calls for investigation. It would be apposite to
reproduce the conclusions of the Honourable Supreme Court in
paragraphs 8, 9, 11 and 12 of National Bank of Oman judgment (supra) as
under:-
"8. We find no error in the view taken by the High Court
that the C.J.M. Ahmednagar had not carried out any
enquiry or ordered investigation as contemplated
under Section 202 of the Cr.P.C. before issuing the
process, considering the fact that the respondent is a
resident of District Dakshin Kannada, which does
not fall within the jurisdiction of the C.J.M.
Ahmednagar. It was, therefore, incumbent upon him
to carry out an enquiry or order investigation as
contemplated under Section 202 of the Cr.P.C.
before issuing the process.
9. The duty of a Magistrate receiving a complaint is set
out in Section 202 of the 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 of the 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 grounds
for him to proceed further. The scope of enquiry
under Section 202 of the 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
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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. .......
11. We are of the view that the High Court has correctly
held that the above-mentioned amendment was not
noticed by the C.J.M. Ahmednagar. The C.J.M. had
failed to carry out any enquiry or ordered
investigation as contemplated under the amended
Section 202 of the Cr.P.C. Since it is an admitted fact
that the accused is residing outside the jurisdiction
of the C.J.M. Ahmednagar, we find no error in the
view taken by the High Court.
12. All the same, the High Court instead of quashing
the complaint, should have directed the Magistrate
to pass fresh orders following the provisions of
Section 202 of the Cr.P.C. Hence, we remit the
matter to the Magistrate for passing fresh orders
uninfluenced by the prima facie conclusion reached
by the High Court that the bare allegations of
cheating do not make out a case against the accused
for issuance of process under Section 418 or 420 of
the I.P.C. The C.J.M. will pass fresh orders after
complying with the procedure laid down in Section
202 Cr.P.C., within two months from the date of
receipt of this order."
14 In the judgment delivered in Vimal Powerloom (supra), this
Court has observed in paragraphs 3 and 5 as under :-
"3. It was submitted for the accused/petitioner that no
inquiry or investigation as required in amended
provision of section 202 of Cr.P.C. is made by the
J.M.F.C. He relied on some reported cases, which
include the case reported as (2013) 2 SCC 488,
[National Bank of Oman Vs. Barakara Abdul Aziz].
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He has relied on some orders made by this Court also
in respect of amended provision of section 202 of
Cr.P.C. Almost all the Courts have held that the
provision of section 202 of Cr.P.C. as amended is
mandatory in nature.
4. .....
5. The various decisions rendered by this Court show
that this Court has held that the provision of section
202 as amended is mandatory in nature. Thus, the
Courts are following the amended provision in this
State. In the case of Oman Bank cited supra, it is laid
down that it is mandatory provision and procedure
needs to be followed by J.M.F.C. In view of this
position of law, this Court holds that the order of
issue process passed by the J.M.F.C., without following
the aforesaid procedure cannot sustain in law. The
Magistrate needs to follow the procedure with only
object, to ascertain the truth in the allegations made
and only prima facie case is required to be made out.
The scope of the inquiry under section 202 of Cr.P.C. is
very limited. He is also required to keep in mind the
relevant provisions of Negotiable Instruments Act like
sections 118 and 139 raise some presumptions. The
witnesses like Bank Officers are not required to be
examined to prove bank documents. Similarly, in
respect of other evidence, the postal endorsement on
the notice, there are presumptions under section 27 of
General Clauses Act and those presumptions can be
kept in mind by the J.M.F.C. Thus, the scope of
inquiry, which may be made by J.M.F.C. is very
limited. In such a case to send the matter to police
even for limited purpose of investigation is not
desirable. In view of these circumstances and position
of law, this Court holds that the matter needs to be
remanded back by allowing the present writ petition."
15 From the above, it is evident that an enquiry under Section
202 pursuant to the amendment inserted by the Act No.25/2005 would
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become necessary in a case where the accused could be said to be residing
at a place which is beyond the area in which the learned Court exercises
it's jurisdiction. The Trial Court having failed to conduct such an enquiry
before passing the impugned order, in my view, therefore, calls for an
interference in the impugned order.
16 However, it cannot be ignored that Accused No.3
(Mr.Kotwale) has not chosen to assail the impugned order.
17 In the light of the above, this Criminal Writ Petition is partly
allowed. The impugned order dated 18.09.2014 passed by the learned
Judicial Magistrate First Class, Biloli in SCC No.196/2014 is quashed and
set aside to the extent of the Petitioners alone. The matter is, therefore,
remitted back to the learned Trial Court in order to enable the Court to
follow the procedure as is laid down under Section 202 of the Code of
Criminal Procedure before passing any order. Needless to state, the Trial
Court shall keep in view the observations of the Hon'ble Apex Court set
out in paragraphs 8, 9, 11 and 12 reproduced above.
kps (RAVINDRA V. GHUGE, J.)
