Bombay High Court
Asma W/O Moinoddin @ Shaker Quazi ... vs The State Of Maharashtra And Anr on 28 September, 2017
Bench: V.L. Achliya
1 Cr.W.P. 1404.2016 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1404 OF 2016
1. Asma w/o Moinoddin
@ Shaker Quazi
Age : 26 Yrs.,Occ. :
Household, R/o : Plot
No. 28, New Ansar
Colony, Lane No. 2,
Padegaon, Aurangabad.
2. Shafiyoddin Ahmed Shaikh
Age : 50 Yrs., Occ. Service,
R/o : Plot No. 28,New Ansar
Colony,Lane No. 2,
Padegaon, Aurangabad.
3. Mehruneesa w/o Shafiyoddin
Shaikh, Age : 45 Yrs.,
Occ. Household, R/o : Plot
No. 28, New Ansar
Colony, Lane No. 2,
Padegaon, Aurangabad.
4. Azaroddin s/o Shafiyoddin
Shaikh, Age : 23 Yrs.,
Occ. Student, R/o : Plot
No. 28, New Ansar
Colony, Lane No. 2,
Padegaon, Aurangabad. ..... PETITIONERS
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2 Cr.W.P. 1404.2016 - [J]
VERSUS
1. The State of Maharashtra
Through Police Inspector,
Police Station, Udgir,
Dist. Latur.
2. Moinoddin @ Shaker s/o
Shirajoddin Quazi
Age : 32 Yrs., Occ. Govt.
Service, R/o : H.No. 382/2,
Siddharth Nagar, ..... RESPONDENTS
...........
Mr. R.S.Deshmukh, Advocate for Petitioners.
Mr. G.O.Wattamwar, A.P.P. for R - 1 - State.
Mr. Ajinkya S.Reddy, Advocate for R - 2.
...........
CORAM : V.L.ACHLIYA, J.
DATE OF JUDGMENT : 28/09/2017
...........
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. By
consent heard finally.
2. Heard the learned counsel for the petitioners,
A.P.P. for respondent No. 1 - State and learned counsel
3 Cr.W.P. 1404.2016 - [J]
for respondent No. 2.
3. In view of the limited challenge raised in the
petition confined to issuance of process without conducting
inquiry as contemplated u/s 202 of Cr.P.C., it is not
necessary to discuss the facts in detail.
4. Heard the learned counsel for the petitioners,
respondent No. 2 and A.P.P. for State and perused the
impugned order.
5. Mr. R.S.Deshmukh, the learned counsel for the
petitioners invited attention to the impugned order and
submitted that in view of the amendment made to section
202 of Code of Criminal Procedure which is brought into
effect from 23/06/2006 before passing order of issuance
of process, it is mandatory on the part of learned
Magistrate to conduct inquiry by himself or to direct to
make investigation by the police officer and then to form
opinion that sufficient grounds exist to proceed against the
accused. It is contended that the impugned order is
passed without conducting the mandatory inquiry as
contemplated u/s 202 of Cr.P.C. The accused are
residents of Aurangabad. The complaint was filed at
4 Cr.W.P. 1404.2016 - [J]
Udgir, District : LaturIn view of the mandate of section
202 of Code of Cr.P.C., the Magistrate ought to have
postpone the process and conducted enquiry on his own or
ordered investigation as contemplated u/s 202 of Code of
Criminal Procedure before issuing process.
6. On the other hand, learned counsel
representing respondent No. 2 has supported the order
passed by the trial Court.
7. Having appreciated the submissions advanced,
in the light of the order passed, I am of the view that the
order is not sustainable in law. Section 202 of 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
5 Cr.W.P. 1404.2016 - [J]
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
6 Cr.W.P. 1404.2016 - [J]
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. "
8. Thus, the plain reading of the provision spell
out that if the accused are not residing within the
jurisdiction of the Magistrate, then it is incumbent upon
the Magistrate to postpone the process and conduct
enquiry on his own or through the investigating agency or
any other person. Only after conducting the investigation,
if the Court is satisfied that there are sufficient grounds to
proceed against the accused, then only the order of
issuance of process can be passed. In the case of Abhijit
Pawar Vs. Hemant Madhukar Nimbalkar reported in
2015 SCC On Line SC 1533, the Apex Court has
considered the purport of section 202 of Code of Criminal
Procedure vis-a-vis the amendment made to section 202
and ruled that the compliance of section 202 is
mandatory. In para Nos. 32 and 34, the Court has
7 Cr.W.P. 1404.2016 - [J]
observed as under :
" 32. Admitted position in law is that in
those cases where the accused is
residing at a place beyond the area in
which the Magistrate exercises his
jurisdiction, it is mandatory on the part
of the Magistrate to conduct an enquiry
or investigation before issuing the
process. Section 202 of the Cr.P.C. was
amended in the year by the Code of
Criminal Procedure (Amendment) Act,
2005 with effect from 22nd June, 2006 by
adding the words 'and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises
his jurisdiction'. There is a vital purpose
or objective behind this amendment,
namely, to ward off false complaints
against such persons residing at a far off
places in order to save them from
unnecessary harassment. Thus the
amended provision casts an obligation on
the Magistrate to conduct enquiry or
direct investigation before issuing the
process, so that false complaints are
filtered and rejected. The aforesaid
purpose is specifically mentioned in the
note appended to the Bill proposing the
said amendment. The essence and
purpose of this amendment has been
8 Cr.W.P. 1404.2016 - [J]
captured by this Court in Vijay Dhanuka
Vs. Najima Mamtaj in the following
words :
11. Section 202 of the Code, inter
alia, contemplates postponement of the
issue of the process "in a case where the
accused is residing at a place beyond the
area in which he exercises his
jurisdiction" and thereafter to either
inquire into the case by himself or direct
an investigation to be made by a police
officer or by such other person as he
thinks fit. In the face of it, what needs
our determination is as to whether in a
case where the accused is residing at a
place beyond the area in which the
Magistrate exercises his jurisdiction,
inquiry is mandatory or not.
12. The words "and shall, in a
case where the accused is residing at a
place beyond the area in which he
exercises his jurisdiction" were inserted
by section 19 of the Code of Criminal
Procedure (Amendment) Act (Central Act
25 of 2005) w.e.f. 23/06/2006. The
aforesaid amendment, in the opinion of
the legislature, was essential as false
complaints are filed against persons
residing at far off places in order to
harass them. The note for the
amendment reads as follows :
9 Cr.W.P. 1404.2016 - [J]
" 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 use of the expression "shall"
prima facie makes the inquiry or the
investigation, as the case may be, by the
Magistrate mandatory. The word "shall"
is ordinarily mandatory but sometimes,
taking into account the context or the
intention, it can be held to be directory.
The use of the word "shall" in all
circumstances is not decisive. Bearing in
mind the aforesaid principle, when we
look to the intention of the legislature,
we find that it is aimed to prevent
innocent persons from harassment by
unscrupulous persons from false
complaints. Hence, in our opinion, the
use of the expression "shall" and the
10 Cr.W.P. 1404.2016 - [J]
background and the purpose for which
the amendment has been brought, we
have no doubt in our mind that inquiry or
the investigation, as the case may be, is
mandatory before summons are issued
against the accused living beyond the
territorial jurisdiction of the Magistrate."
34. The requirement of conducting
enquiry or directing investigation before
issuing process is, therefore, not an
empty formality. What kind of 'enquiry'
is needed under this provision has also
been explained in Vijay Dhanuka case,
which is reproduced hereunder :
14. In view of our answer to the
aforesaid question, the next question
which falls for our determination is
whether the learned Magistrate before
issuing summons has held the inquiry as
mandated under Section 202 of the
Code. The word "inquiry" has been
defined under Section 2 (g) of the Code,
the same reads as follows :
"2. (g) 'inquiry' means every
inquiry, other than a trial, conducted
under this Code by a Magistrate or
court;"
It is evident from the aforesaid
provision, every inquiry other than atrial
11 Cr.W.P. 1404.2016 - [J]
conducted by the Magistrate or the court
is an inquiry. No specific mode or
manner of inquiry is provided under
section 202 of the Code. In the inquiry
envisaged under section 202 of the
Code, the witnesses are examined
whereas under section 200 of the Code,
examination of the complainant only is
necessary with the option of examining
the witnesses present, if any. This
exercise by the Magistrate, for the
purpose of deciding whether or not there
is sufficient ground for proceeding
against the accused, is nothing but an
inquiry envisaged under section 202 of
the Code. "
9. In this view, the impugned order is liable to be
set aside and the matter needs to be remanded back to
the trial Court with a direction to conduct enquiry as
contemplated u/s 202 of Code of Criminal Procedure and
then to pass appropriate order. Hence, the following order
is passed.
ORDER
[i] The petition is allowed.
12 Cr.W.P. 1404.2016 - [J]
[ii] The impugned order is set aside. The case is
remanded back to the trial Court. The learned Magistrate
is directed to conduct enquiry u/s 202 of Code of Criminal
Procedure and then to pass appropriate order as deem fit
and proper in the facts and circumstances of the case.
[iii] Rule made absolute in above terms.
[V.L.ACHLIYA, J.]
KNP/Cr.W.P. 1404.2016 - [J]
