In order to have implementation of the orders issued
by the Constitution Bench in suo motu Writ Petition dated
16/4/2021, the Registrar General of the Bombay High Court has
also issued a circular on 27/1/2022, clearly issuing the following
directions:-
“2 On receipt of any complaint under Section 138 of
N.I. Act, wherever it is found that any accused is resident of
the area beyond the territorial jurisdiction of the magistrate
concerned, an inquiry shall be conducted by the magistrate
to arrive at sufficient grounds to proceed against the
accused as prescribed under Section 202 of Cr.P.C.
3 While conducting any such inquiry under section
202 of Cr.P.C, the evidence of witnesses on behalf of the
complainant shall be permitted to be taken on affidavit. In
suitable cases, the magistrate may restrict the inquiry to
examination of documents without insisting for examination
of witnesses for satisfaction as to the sufficiency of grounds
for proceeding under the said provision”.
7 In our considered view, the question, referred to the
larger Bench, is already answered by the Constitution Bench of
the Apex Court as above, and therefore, we do not deem it
necessary to answer the reference. {Para 6}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1344 OF 2010
Bansilal S. Kabra Vs Global Trade Finance Limited & Anr
CORAM: DEVENDRA KUMAR UPADHYAYA, C.J,
BHARATI DANGRE, J & ARIF S. DOCTOR, J
DATED : 16th JANUARY 2024.
1 In light of the cleavage of opinion on the aspect
whether the amendment in Section 202, sub clause(1) of the
Code of Criminal Procedure, contemplating an inquiry before
issuance of process by the Magistrate, where the accused is
residing outside the jurisdiction of the Court, is discretionary or
mandatory, a larger Bench was constituted by the then, Hon’ble
The Chief Justice.
Justice V.M. Kanade, (as His Lordship then was), in
his order dated 9/7/2010 passed in Criminal Application No.
1344 of 2010, expressed his view that the amendment is directory
and not mandatory, whilst he expressed disagreement with Justice
S.C. Dharmadhikari (as his Lordship then was), who in his order
passed in Criminal Application No. 2640/2009 was of the view,
that the amended provision is mandatory in nature.
2 Reference made to the larger Bench was required to
be deferred in the wake of the scenario, that the Appeal (Criminal
Appeal No. 276/2013) preferred against the impugned order was
pending before the Apex Court and subsequently, in light of the
Appeal being decided on 23/9/2021, the matter is once again
placed before the larger Bench, which is reconstituted on
31/10/2023.
3 We have heard learned Advocate Shri Arun Mehta
along with Advocate Aniket Srivastav for the applicant, Mr. H.S.
Venegaonkar, Public Prosecutor for the State and Mr.Yashpal
Thakur with Advocate Mukund Pandya for the respondent no.1.
We have also perused the distinct orders passed by the
respective Single Judge of this Court, resulting into this reference.
With the passage of the time, since the reference was
made, there is further evolution of law on the aspect involved and
though there are decisions from this Court as well as the higher
Court, which have categorically held that the provision is
mandatory in nature, in our opinion, the conundrum has been
put to rest by the Constitution Bench of the Apex Court in suo
motu Writ Petition (CRL) No.2 of 2020 in Re: EXPEDITIOUS
TRIAL OF CASES UNDER SECTION 138 OF THE N.I. Act, 1881,
headed by the then Hon’ble The Chief Justice of India on
16/4/2021.
While touching the significant aspects revolving
around Section 138 of the Negotiable Instruments Act, 1881
(“the Act”) and on being concerned with large number of pending
cases, the cause was taken up, for examining the reasons for the
delay in disposal of these cases and one of the facet which Their
Lordships deemed appropriate to focus upon, was in regard to
“Inquiry u/s.202 of the Code in relation to Section 145 of the
Act”.
Referring to the amendment in Section 202 of Code
enforced with effect from 23/6/2006 vide Act No.25 of 2005,
which made it mandatory for the Magistrate to conduct an
inquiry before issuance of the process, in a case where the accused
resided beyond the area of the jurisdiction of the Court, the
diversion of opinion among the High Courts relating to the
applicability of the said provisions to the complaints filed under
Section 138 of the Act, was noted.
The amicus curiae advanced his submissions
reflecting upon the imperative nature of the amendment and
what is recorded in paragraph no.11, of the Constitution Bench
decision, deserves a reproduction :-
“11 The learned Amici Curiae referred to a judgment
of this Court in K.S. Joseph Vs. Philips Carbon Black Ltd, &
Anr, where there was a discussion about the requirement of
inquiry under Section 202 of the Code in relation to
complaints filed under Section 138 but the question of law
was left open. In view of the judgments of this Court in
Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla
Corporation (supra), the inquiry to be held by the
Magistrate before issuance of summons to the accused
residing outside the jurisdiction of the court cannot be
dispensed with. The learned Amici Curiae recommended
that the Magistrate should come to a conclusion after
holding an inquiry that there are sufficient grounds to
proceed against the accused. We are in agreement with the
learned Amici.”
4 Another aspect, in order to curtail the delays in
conclusion of the trials under the Act of 1881, which was adverted
to, is in relation to interpretation of Section 202(2) of the Code,
which expected the Magistrate to record evidence of the witness
on oath, in an inquiry to be conducted u/s.202(1), before
issuance of the process, and though in the present reference, we
are not concerned with the said issue, we must note that, on this
aspect, the Apex Court has held, that in the wake of Section 145
of the Act, the evidence of witness on behalf of the complainant,
shall be permitted on affidavit and there is no reason for insisting
on the evidence on oath. Thus, if the Magistrate prefers to hold
an inquiry himself, it shall not be imperative for him to examine
the witness on oath and in suitable cases, he may examine the
documents for satisfying himself, as to the sufficiency of the
grounds for proceeding u/s.202 of the Code.
5 Though the above conclusions drawn in the suo motu
Writ Petition, are touching the cases under Section 138 of the
Negotiable Instruments Act, 1881, at a subsequent point of time
and to be precise on 23/9/2021, the Criminal Appeal filed in the
present proceedings, was heard along with the group of appeals
and the question involved in the matters, namely, whether an
inquiry u/s.202 of the Cr.P.C, is mandatory or directory in nature,
came to be answered by specifically reproducing, paragraphs 10 to
12 of the Constitution Bench Judgment, in suo motu Writ
Petition No.2 of 2020 (AIR 2021, Supreme Court 1957), and
since the issue raised in this regard, was already settled, each
individual matter was left open to the discretion of the concerned
Magistrate(s) to decide, as to what type of procedure they need to
adopt in the complaints, pending adjudication before them,
where the accused persons are located outside their territorial
jurisdiction, and the Criminal Appeals were disposed off.
6 In order to have implementation of the orders issued
by the Constitution Bench in suo motu Writ Petition dated
16/4/2021, the Registrar General of the Bombay High Court has
also issued a circular on 27/1/2022, clearly issuing the following
directions:-
“2 On receipt of any complaint under Section 138 of
N.I. Act, wherever it is found that any accused is resident of
the area beyond the territorial jurisdiction of the magistrate
concerned, an inquiry shall be conducted by the magistrate
to arrive at sufficient grounds to proceed against the
accused as prescribed under Section 202 of Cr.P.C.
3 While conducting any such inquiry under section
202 of Cr.P.C, the evidence of witnesses on behalf of the
complainant shall be permitted to be taken on affidavit. In
suitable cases, the magistrate may restrict the inquiry to
examination of documents without insisting for examination
of witnesses for satisfaction as to the sufficiency of grounds
for proceeding under the said provision”.
7 In our considered view, the question, referred to the
larger Bench, is already answered by the Constitution Bench of
the Apex Court as above, and therefore, we do not deem it
necessary to answer the reference.
However, we would like to only add, by taking note,
that Chapter XV of the Code, which contemplates complaints to
the Magistrate, which includes Section 202, intended to achieve
twin objects; one being to enable the Magistrate to carefully
scrutinize the allegations made in the complaint with a view to
prevent a person named therein, as accused from being called
upon to face unnecessary, frivolous or meritless complaint; and
the other, to find out whether there is any material in existence, to
support the allegations in the complaint. The Magistrate is
therefore, duty bound to elicit all facts, having regard to the
interest of the complainant, in absence of the accused, before he
brings to book him for the accusations in the complaint. For
forming an opinion to that effect, the Magistrate may himself
hold an inquiry u/s. 202 of the Code, or direct investigation to be
made by a police officer.
We may also add that in a contingency, when he
decides to conduct an inquiry, specifically against the persons
residing outside his territorial jurisdiction, the inquiry must be
aimed at ascertaining the truth or otherwise in the allegations
made in the complaint. It is expected that the Magistrate shall not
only rely upon the averments in the complaint, as it may many a
times, contain unfounded allegations which require ascertaining
of its veracity, before the process is issued, so as to separate the
chaff from the grain.
Before the Magistrate acts on the complaint, by
issuing process against the person named as an accused therein, he
shall satisfy himself about the existence of sufficient ground(s), for
proceeding against him, particularly when he is residing outside
his jurisdiction. The amended provision is aimed to prevent
innocent persons residing at far places, from harassment by
unscrupulous persons, filing unfounded and false complaints.
This would necessarily involve recording of statement
of the complainant on oath, in form of verification statement or
recording evidence of any witnesses produced by the
complainant, in support of the allegations in the complaint, to
find out whether a prima facie case for issuance of process has
been made out.
We must, however, clarify that this inquiry is
restricted to, ascertaining the element of truth or falsehood of the
allegations in the complaint, based on the material placed by the
complainant before the Court, and the inquiry is limited only to
this extent i.e. to find out, if there is any matter which calls for
investigation.
8 Summoning of an accused in a criminal case, is a
serious matter and it certainly cannot be a perfunctory exercise.
The amendment introduced in the Code therefore, contemplates
that a Magistrate shall examine the nature of allegations in the
complaint and take into account the evidence, both oral and
documentary, to find out if it is sufficient for the complainant to
succeed in establishing the charge against the accused, and justify
the issuance of process against him. It is nonetheless the duty of
the Magistrate to prima facie find out, if the case is made out by
the complainant against the accused before the process is issued,
so as to avoid any frivolous or vexatious claims being taken
forward by the Magistrate. Only on being satisfied that the
offence is made out against the person(s) named in the complaint,
the process would be issued and at this stage, all the relevant facts
and circumstances shall be taken into consideration before issuing
process, lest it would be an instrument in the hands of a private
complainant, as vendetta to harass the named accused.
Vindication of majesty of justice and maintenance of law and
order in the Society, being the primary object of criminal justice,
would not bring within its sweep, a personal vengeance.
Hence, we answer the reference accordingly.
(CHIEF JUSTICE)
( SMT. BHARATI DANGRE, J.)
(ARIF S. DOCTOR, J)
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