Bombay HC: Magistrate Must Conduct Enquiry U/S 202 of CRPC Before Summoning Accused Living Beyond its Jurisdiction

 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.

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What is duty of Magistrate before passing order of issue process against accused who is resident of area beyond his jurisdiction?

 However, regarding non-compliance of Section 202 of the

Code of Criminal Procedure while issuance of process, there is

substance in the contention of learned counsel for the applicants

that the provisions of Section 202 of the Code of Criminal Procedure are mandatory in nature and ought to have been complied in this case. Perusal of title of the complaint demonstrates that accused persons were residents of the place which was beyond the jurisdiction of the learned Magistrate. In such circumstances, it was not open for the learned Magistrate to issue process against them without conducting an enquiry or calling upon the concerned police to conduct enquiry. Since the accused were not residing within the jurisdiction of the Court, it was obligatory on the part of the learned Magistrate to postpone issuance of process against those accused till such enquiry is conducted. It is also brought to the notice of the Court that order passed by the learned Magistrate is not reasoned order. Needless to say that order of issuance of process need not be a detailed order however, it should reflect that the learned Magistrate has applied mind. In both cases, it would not be open for this Court

to quash the complaint but the complaint needs to be relegated back to Trial Court for issuance of process afresh.{Para 6}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 851 OF 2023

Vikram Ambalal Vakil & others Vs The State of Maharashtra 

CORAM : R. M. JOSHI, J.

DATE : 21st AUGUST, 2023.

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Whether the court can conduct S 202 CRPC proceeding under dishonour of cheque case on the basis of documents only?

 We may note here that as far as complaints under

Section 138 of the NI Act are concerned, this Court in

Suo Motu Writ Petition (Criminal)No.2 of 2020 in the case

of "In Re : Expeditious Trial of Cases Under Section 138

of N.I.Act, 18811" has laid down the guidelines. In

clause (3) of paragraph 24 of the said decision, the

Constitution Bench has directed as under:

"3) For the conduct of inquiry under Section

202 of the Code, evidence of witnesses on behalf

of the complainant shall be permitted to be

taken on affidavit. In suitable cases, the

Magistrate can restrict the inquiry to

examination of documents without insisting for

examination of witnesses."

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2484 OF 2023

VISHWAKALYAN MULTISTATE CREDIT CO OP

SOCIETY LTD. VS. ONEUP ENTERTAINMENT PRIVATE LIMITED.

Dated: August 21, 2023.

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Whether the magistrate can dismiss the criminal complaint without examining witnesses of complainant?

A perusal of the complaint shows that eight witnesses were specifically named in the complaint. The learned Magistrate did not examine any of them. In the order dated 18th September, 2008, the learned Magistrate has not recorded reasons for not recording the statements of other witnesses specifically cited in the complaint. The law is well settled, which is found to have

been reiterated in the decision in the case of Mohinder Singh

(supra). After taking recourse to sub-Section (1) of Section

202 of the Cr.P.C., before dismissing a complaint by taking

recourse to Section 203 of the Cr.P.C., the learned

Magistrate has to consider the statements of the complainant

and his witnesses. In this case, the learned Magistrate has

not examined the other witnesses. The view taken by this

Court in the case of Nagawwa (supra) is no different.

5. Therefore, we find no error when the High Court came

to the conclusion that the complaint deserves to be remanded

from the stage of holding an inquiry under sub-Section (1) of

Section 202 of the Cr.P.C.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 561 OF 2012

DILIP KUMAR  Vs  BRAJRAJ SHRIVASTAVA & ANR.

Author: ABHAY S. OKA, J.

Dated: 26th JULY, 2023.

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Bombay HC Guidelines for expeditious disposal of cheque dishonour case

The Honourable the Chief Justice has been pleased to issue the following practice directions : -

1. The magistrates having jurisdiction to try offences under the

Negotiable Instruments Act, 1881 (in short N.I. Act), shall record

cogent and sufficient reasons before converting a complaint

under section 138 of the N.I. Act from summary trial to summons

trial in exercise of power under the second proviso of section 143

of N.I.Act. Due care and caution shall be exercised in this regard

and the conversion of summary trial to summons trial shall not be

in a mechanical manner.

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.

4. Trial Court shall treat service of summons in one complaint

under section 138 of the N.I. Act forming part of a transaction, as

deemed service in respect of all complaints filed before the same

Court relating to the dishonor of cheques issued as a part of the

same transaction.

5. Trial Courts have no inherent power to review or recall the issue

of summons in relation to complaint filed under section 138 of

N.I. Act. However, the same shall not affect the power of the

Trial Court under section 322 of Cr.P.C to revisit the order of

issue of process in case it is brought to the court’s notice that it

lacks jurisdiction to try the complaint.

6. Section 258 of Cr.P.C. has no applicability to complaints under

section 138 of the N.I.Act. The words “as far as may be” in

section 143 are used only in respect of applicability of sections

262 to 265 of the Code and the summary procedure to be

followed for trials under the said Code.

7. The appellate courts before which appeals against the judgments

in complaint under section 138 of the N.I. Act are pending are

directed to make an effort to settle the dispute through mediation.

These practice directions shall come into force with immediate

effect.

HIGH COURT OF JUDICATURE APPELLATE SIDE

AT BOMBAY

C I R C U L A R

Dated : 27th JANUARY 2022

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Whether it is mandatory for Magistrate to examine witnesses before issue process in cheque dishonour case?

 Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.{Para 38}

39. In the present case, the Magistrate has adverted to:
(i) The complaint;
(ii) The affidavit filed by the complainant;
(iii) The evidence as per evidence list and; and
(iv) The submissions of the complainant.

40. The order passed by the Magistrate cannot be held to be invalid as betraying a non-application of mind. 

Supreme Court

JUSTICE Dr. DHANANJAYA Y. CHANDRACHUD JUSTICE A. S. BOPANNA

Sunil Todi & Ors. Vs. State of Gujarat & Anr.

Criminal Appeal No. 1446 of 2021

3rd December 2021

Author: Dr. Dhananjaya Y. Chandrachud, J.

Citation: 2021 ALL SCR (ONLINE) 722

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Whether the magistrate must conduct enquiry U/S 202(1) of CRPC when a tenant has filed a criminal complaint against landlord residing beyond the jurisdiction of the court?

 By Amendment Act 25 of 2005, Sub-Section (1) of Section 202 Cr.P.C. came to be amended w.e.f. 23.06.2006 and the following words were inserted:-

"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction"

14. The object of the amendment was to place a check on false complaints filed against persons who are living at far-off places. It was made obligatory upon the Magistrate to enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit to find out whether or not there was sufficient ground to proceed against the accused. The use of the word "shall" mean that an enquiry or investigation envisaged under Sub-Section (1) of Section 202 Cr.P.C. is mandatory.

17. In Birla Corporation Ltd. (Supra), the Supreme Court while relying on the decisions in Vijay Dhanuka (Supra); Abhijit Pawar (Supra) and National Bank of Oman v. Barakara Abdul Aziz and Anr. reported as MANU/SC/1123/2012 : (2013) 2 SCC 488 reiterated that holding of enquiry under Section 202 Cr.P.C. is mandatory.

18. In Pepsi Foods Ltd. v. Special Judicial Magistrate & Ors. reported as MANU/SC/1090/1998 : (1998) 5 SCC 749, it was held that summoning of an accused in a criminal case is a serious matter and the criminal law cannot be set into motion as a matter of course. It was further held that:

"28. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

19. As enunciated in the decisions referred above, the sole object of bringing the amendment in Sub-Section (1) of Section 202 Cr.P.C. was to save the accused living at far-off places from unnecessary harassment in false and fictitious complaints. In these circumstances, the issue that has arisen in the present case needs to be addressed keeping in view the object and purpose of the amendment.

21. The complainant, is occupying as a tenant the entire ground floor of the very premises, which are mentioned as the Delhi address of the petitioner in the memo of the complaint, the other being an address in Kolkatta. In spite of that, there is not even a whisper let alone an averment to the effect that the petitioner has been residing at the given address in Delhi. In these circumstances, in absence of any averment in the complaint or the material on record to the aforesaid effect coupled with the fact that an alternate address of the petitioner is given which is outside the jurisdiction of the court, then an enquiry ought to have been conducted. When the law casts a duty on the court to conduct an enquiry once an accused is stated to be a resident of a place which is outside the territorial jurisdiction of the court, in the opinion of this Court, in the facts and circumstances of this case, it was obligatory on the part of learned ACMM to conduct an enquiry envisaged under Section 202 Cr.P.C. Accordingly, the impugned order dated 01.10.2016 is set aside and the matter is remanded back to the concerned court for fresh consideration in accordance with law. The matter shall be initially listed before the concerned court on 01.07.2020 for directions.

IN THE HIGH COURT OF DELHI

Crl. M.C. 2427/2018 and Crl. M.A. 8663/2018

Decided On: 25.06.2020

 Madhvi Singh  Vs.  G.K. Hada and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

Citation: MANU/DE/1304/2020

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Whether Accused can remain present before magistrate in person or through a counsel or agent during enquiry U/S 202 of CRPC?

 Thus, the question to be considered is as to whether accused has any right to cross examine a prosecution witness examined during the course of inquiry under Section 202 of the Code. It is well settled that the scope of inquiry under Section 202 of the Code is very limited one and that is to find out whether there are sufficient grounds for proceeding against the accused who has no right to participate therein much less a right to cross examine any witness examined by the prosecution, but he may remain present only with a view to be informed of what is going on. This question is no longer res integra having been specifically answered by a 4-Judge bench decision of this Court in the case of Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose and Anr. MANU/SC/0053/1963 : , [1964]1SCR639 , wherein this Court categorically laid down that an accused during the course of inquiry under Section 202 of the Code of Criminal Procedure, 1898, has no right at all to cross examine any witness examined on behalf of the prosecution. It was observed thus at page 1432:

"Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 697 of 2003

Decided On: 10.02.2004

Sashi Jena Vs. Khadal Swain and Ors.

Hon'ble Judges/Coram:

Y.K. Sabharwal and B.N. Agrawal, JJ.

Citation: MANU/SC/0106/2004,(2004) 4 SCC 236, AIR 2004 SC 1492

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Bombay HC: It is mandatory for Magistrate to conduct inquiry U/S 202 of CRPC in cheque dishonour case

Relevant cases like case of Vijay Dhanuka of the Apex Court, case of Rajesh Chalke (Full Bench of this Court) and the case of 

Rajul Raj decided by the learned Single Judge of this Court are already mentioned and discussed by this Court. It is already mentioned that most of the Judges of this Court have held that the provision of section 202 is mandatory in nature and that needs to be followed even when the case is filed under section 138 of the Negotiable Instruments Act. For taking such view this Court has placed reliance on the cases reported as:

(i) MANU/SC/0874/2009 : (2009) 15 SCC 199 (K.T. Josheph v. State of Kerala).

(ii) MANU/SC/1123/2012 : (2013) 2 SCC 489 (National Bank of Oman v. Barakar Abdul Aziz).

(iii) MANU/SC/0018/2013 : (2013) 2 SCC 435 (Udai Shankar Avasthi v. State of U.P).

This Court has considered the circumstance that the point is referred to larger bench and the matter is pending before the larger bench of the Apex Court and in view of these circumstances this Court has observed that there are two options open for such cases viz. (1) to stay the proceeding and wait for the decision of the Apex Court in view of the aforesaid cases decided by the Apex Court; or, (2) direct the Magistrate to follow the mandatory provision of section 202 of Cr.P.C. In the present matter this Court holds that the second option needs to be used.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition Nos. 1241, 1242 and 1243 of 2017

Decided On: 05.03.2019

Parth Bhadresh Mehta  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: 2019(5) MHLJ 771 Bom

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Supreme Court: Magistrate should not act as post office while issuing process against accused U/S 202 of CRPC

 Considering the scope of amendment to Section 202
Cr.P.C., in Vijay Dhanuka and Others v. Najima Mamtaj and
Others (2014) 14 SCC 638, it was held as under:-
“12. ….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 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.”
Since the amendment is aimed to prevent persons residing
outside the jurisdiction of the court from being harassed, it was
reiterated that holding of enquiry is mandatory. The purpose or
objective behind the amendment was also considered by this
Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar and
Another (2017) 3 SCC 528 and National Bank of Oman v.
Barakara Abdul Aziz and Another (2013) 2 SCC 488.
34. The order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the case and
the law applicable thereto. The application of mind has to be
indicated by disclosure of mind on the satisfaction. Considering
the duties on the part of the Magistrate for issuance of summons
to accused in a complaint case and that there must be sufficient
indication as to the application of mind and observing that the
Magistrate is not to act as a post office in taking cognizance of
the complaint, in Mehmood Ul Rehman, this Court held as under:-

“22. ….the Code of Criminal Procedure requires speaking order
to be passed under Section 203 Cr.P.C. when the complaint is
dismissed and that too the reasons need to be stated only briefly.
In other words, the Magistrate is not to act as a post office in
taking cognizance of each and every complaint filed before him
and issue process as a matter of course. There must be
sufficient indication in the order passed by the Magistrate that he
is satisfied that the allegations in the complaint constitute an
offence and when considered along with the statements
recorded and the result of inquiry or report of investigation under
Section 202 Cr.P.C., if any, the accused is answerable before the
criminal court, there is ground for proceeding against the
accused under Section 204 Cr.P.C., by issuing process for
appearance. The application of mind is best demonstrated by
disclosure of mind on the satisfaction. If there is no such
indication in a case where the Magistrate proceeds under
Sections 190/204 Cr.P.C., the High Court under Section 482
Cr.PC. is bound to invoke its inherent power in order to prevent
abuse of the power of the criminal court. To be called to appear
before the criminal court as an accused is serious matter
affecting one’s dignity, self-respect and image in society. Hence,
the process of criminal court shall not be made a weapon of
harassment.”
35. In Pepsi Foods Ltd. and Another v. Special Judicial
Magistrate and Others (1998) 5 SCC 749, the Supreme Court has
held that summoning of an accused in a criminal case is a serious
matter and that the order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of

the case and law governing the issue. In para (28), it was held as
under:-
“28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto. He
has to examine the nature of allegations made in the complaint
and the evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the Magistrate
is a silent spectator at the time of recording of preliminary
evidence before summoning of the accused. The Magistrate has
to carefully scrutinise the evidence brought on record and may
even himself put questions to the complainant and his witnesses
to elicit answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused.”
The principle that summoning an accused in a criminal case is a
serious matter and that as a matter of course, the criminal case
against a person cannot be set into motion was reiterated in
GHCL Employees Stock Option Trust v. India Infoline Limited
(2013) 4 SCC 505.
36. To be summoned/to appear before the Criminal Court as an
accused is a serious matter affecting one’s dignity and reputation

in the society. In taking recourse to such a serious matter in
summoning the accused in a case filed on a complaint otherwise
than on a police report, there has to be application of mind as to
whether the allegations in the complaint constitute essential
ingredients of the offence and whether there are sufficient
grounds for proceeding against the accused. In Punjab National
Bank and Others v. Surendra Prasad Sinha 1993 Supp (1) SCC
499, it was held that the issuance of process should not be
mechanical nor should be made an instrument of oppression or
needless harassment.
37. At the stage of issuance of process to the accused, the
Magistrate is not required to record detailed orders. But based on
the allegations made in the complaint or the evidence led in
support of the same, the Magistrate is to be prima facie satisfied
that there are sufficient grounds for proceeding against the
accused.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 875 OF 20

BIRLA CORPORATION LIMITED Vs  ADVENTZ INVESTMENTS AND HOLDINGS .

R. BANUMATHI, J.
Dated:May 09, 2019.

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Whether it is mandatory to make enquiry as per S 202 of CRPC in case of dishonour of cheque?

Learned counsel further contended that the applicant is residing beyond the jurisdiction of the trial Court and, therefore, it was mandatory to conduct an inquiry in accordance with the amended provisions of Section 202 of the Code of Criminal Procedure. It was argued that although in the order issuing process there is a reference to invoking Section 202 of the Cr.P.C., no inquiry was conducted in proper perspective. In the case of National Bank of Oman (Supra), the Supreme Court has considered the aspect of carrying out such an inquiry as per the said amended provisions of Cr.P.C. The said decision is related to the offences under the Indian Penal Code. In the Judgment of this Court in the case of Netcore Solution Private Limited v. Vinay Rai MANU/DE/0170/2012 : 2012(1)Bom.C.R.(Cri.)788, it was held that the trial Court ought to have postponed the issuance of process in view of the mandatory provisions for inquiry under Section 202 of the Cr.P.C., as the petitioner therein were residents of Mumbai and the proceedings were initiated in the Court at Nagpur. The said decision was however, was related to the offence under Section 138 of Negotiable Instruments Act. This Court in several decisions have consistently taken a view that in the proceedings under Section 138 of the Negotiable Instruments Act, it is not mandatory to hold an inquiry under Section 202 of the Cr.P.C. in the event the accused are residing beyond the jurisdiction of the Court. In any case, it has to be noted that in the present case the trial Court had invoked Section 202 of Cr.P.C. which is apparent from the order issuing process. The Court has recorded the verification statement of the complainant as well as considered the affidavit filed by the complainant and, thereafter, issued the process. In the order issuing process it is observed that the accused being resident of beyond the territorial jurisdiction of the Court, inquiries under Section 202 of Cr.P.C. were held. Complainant filed affidavit in support of allegations made in the complaint and also filed ROC record and after going through the record of the case, the complaint satisfies the requisite ingredients. It is argued that the trial Court has not conducted an inquiry within the purview of Section 202 of the Code of Criminal Procedure. It is pertinent to note that no specific mode of inquiry is provided under Section 202 of Cr.P.C. Apart from that this Court has observed that it is not mandatory to hold such an inquiry in relation to the proceedings under Section 138 of the Negotiable Instruments Act. In Bansilal Kabra v. Global Trade Finance Ltd. MANU/MH/2324/2010 : 2010 ALL MR (Cri) 3168 this Court has held that if Section 202 of Cr.P.C. is made applicable to complaints under Section 138 of Negotiable Instruments Act, it would defeat the very purpose behind enactment of the said provision. The Magistrate can exercise his discretion and decide whether to issue process, dismiss the complaint after recording verification of the complainant and his witnesses, if any, or postpone the issuance of process and in a given case hold further inquiry depending on facts of each case. No compliance would not vitiate the process if there is material to indicate application of mind.

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 1248 of 2016

Decided On: 13.10.2017

Vijay Tata Ravipati Vs. Mediascope Publicitas (India) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

P.D. Naik, J.

Citation: 2018(1) MHLJ 211

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Whether it is mandatory for magistrate to make enquiry prior to issue of process against accused residing beyond jurisdiction of court?

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 captured by this Court in Vijay Dhanuka v.Najima Mamtaj8 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. 23-6-2006. 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:

“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 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.”

33. For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. This requirement is emphasised by this Court in a recent judgment Mehmood Ul Rehman v. Khazir Mohammad Tunda9 in the following words:

“20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.

22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before A.K. Sikri and Abhay Manohar Sapre, JJ.)

Criminal Appeal No. 1225 of 2016

[Arising out of SLP (Crl.) No. 9318 of 2012]

Abhijit Pawar 

v.

Hemant Madhukar Nimbalkar & Anr.

With

Criminal Appeal No. 1226 of 2016

Decided on December 14, 2016

The Judgment of the Court was delivered by

A.K. Sikri, J.:— Leave granted.

Citation: 2016 SCC OnLine SC 1533,AIR 2017 SC 299,
(2017) 3 SCC528

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Whether S 202 of CRPC is applicable to proceeding for dishonour of cheque?

 So far as the question of application of Section 202
Cr.P.C. is concerned, that question has already been settled by
this Court. The provisions are not applicable to the complaints
filed under Section 138 of the Negotiable Instruments Act.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
 Crl. Misc. No. M-21674 of 2013 (O&M)
 Date of decision : 17.11.2015
Kishan Lal More and another
versus
M/s. Bibby Financial Services India Pvt. Ltd. & another
CORAM:- HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Citation:2016 CRLJ(NOC)213 P&H

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Whether complainant can give his evidence on affidavit for inquiry under S 202 of CRPC in case of dishonour of cheque?

So far as the issue of examination of complainant on solemn affirmation Under Section 200 of the Code of Criminal Procedure is concerned, the submissions are misconceived on account of Section 145 of the Act which was inserted along with some other Sections through an amendment in the year 2002 w.e.f. 06.02.2003. Section 145 of the Act is as follows:

145. Evidence on affidavit.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

4. The non obstante Clause in Sub-section (1) of Section 145 is self-explanatory and over-rules the requirement of examination of the complainant on solemn affirmation Under Section 200 of the Code of Criminal Procedure. Now the complainant is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under the Code of Criminal Procedure. This view is also supported by the judgment of this Court in the case of Mandavi Cooperative Bank Ltd. v. Nimesh B. Thakore MANU/SC/0016/2010 : (2010) 3 SCC 83.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 247 of 2016

Decided On: 11.04.2016

K.S. Joseph Vs. Philips Carbon Black Ltd. and Ors.

Coram:Dipak Misra and Shiva Kirti Singh, JJ.

Citation:AIR 2016 SC 2149

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Whether magistrate should call say of accused prior to issue of process against him?

 Going   through   the   material   available   on
record,   it   appears   that   the   Magistrate   committed
an   error   when   at   the   stage   of   considering   the
private   complaint,   under   Section   200   of   Cr.P.C.,
after recording verification instead of resorting
to any of the options provided under Section 200
read with  Section 202 of Cr.P.C., the Magistrate

issued notice calling upon the accused to say as
to why he should not be prosecuted.

IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.54 OF 2011


Santoshkumar Ghisulal Jaju, Vs         The State of Maharashtra,

              CORAM:   A.I.S. CHEEMA, J.
              DATE :   25TH JANUARY, 2016
Citation;2016 ALLMR(CRI)1283

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Whether it is necessary to make enquiry U/S 202 of crpc in case of dishonour of cheque?

The dictum laid down by the Apex Court in Indian Bank Association
(supra) and the Full Bench of this court in Rajesh Chalke (supra) makes it
clear that in the complaints under section 138 NI Act, the Magistrate is not
obliged to examine the complainant under section 200 Cr.PC and can rely
on affidavit filed along with the complaint. The Magistrate can take
cognizance and issue summons if upon scrutinizing the complaint, the
affidavit and the documents he is satisfied that prima facie offence has been
made out against the accused.
40. It is also pertinent to note that the Negotiable Instruments
(Amendment) Act, 2015 defines and restricts the territorial jurisdiction to a
court specified in Section 142 (2) (a) and (b) of the Act. The said issue of
territorial jurisdiction which has to be decided on the basis of the
documents, eliminates the need for further inquiry on jurisdictional issue.
It therefore follows that the Magistrate can arrive at the requisite
satisfaction about the essential ingredients of the offence including the
issue of territorial jurisdiction at the end of the enquiry under Section 200

Cr.P.C itself and this obviates the need of holding further enquiry under
Section 202 Cr.P.C. This being the position further enquiry under sub
section (1) of Section 202 of the Code, if held to be mandatory in
complaints filed under Section 138 N.I.Act, will be nothing but ritualistic,
idle and an empty formality.
41. It may be mentioned that the decision of the full bench of this court in
Rajesh Chalke (supra_ was not brought to the notice of the learned Single
Judge in Netcore (Cri. Writ Petition No. 138 of 2011). Similarly, the
decision of the Apex Court in M/s. Indian Bank Associates (supra) as well
as the decision of the full bench of this court in Rajesh Chalke were not
brought to the notice of the learned single judge in Vimal Powerloom
(supra). Consequently, the learned Single Judges of this Court had no
occasion to consider the principles laid down by the Apex Court as well as
the full bench of this Court in the aforesaid decisions. These two decisions
therefore cannot be considered as binding precedents. In any case, upon
consideration of the decision in Indian Banks Association (supra) and
Rajesh Chalke (supra) it would be appropriate to follow the decision in
Bansilal Kabra (supra), and Vinod vs. SBI Global (supra).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPLICATION NO. 716 OF 2015
with
CRIMINAL APPLICATION NO. 717 OF 2015

Dr. (Mrs) Rajul Ketan Raj v/s. Reliance Capital Ltd. & Anr.

 CORAM : SMT. ANUJA PRABHUDESSAI, J.

 PRONOUNCED ON : 12th FEBRUARY, 2016.

Citation;2016 ALLMR(CRI)1224

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Whether order of issue process passed against accused residing outside territorial jurisdiction of court can be quashed?

 The learned Counsel for the applicants submits that
the applicants herein are residing beyond the territorial

jurisdiction of the learned Magistrate, who issued process
against the accused. Learned Counsel for the applicants submits
that, this is a patent irregularity and that the Magistrate ought to
have issued notice under Section 202 of the Code of Criminal
Procedure (Cr.P.C.) and, thereafter, proceeded with the matter
since he was inclined to issue process. The applicants herein
have therefore prayed that the order issuing process be quashed
and set aide.
 The learned Counsel for respondent No. 2 rightly
submits that, the proceedings under Section 202 of Cr.P.C. is
only an irregularity and it would not vitiate the proceedings and
hence there is no question of quashing the said proceedings for
non-compliance of Section 202 of Cr.P.C.
 In view of this, the matter deserves to be remanded
and is accordingly remanded to the Court of 7th Judicial
Magistrate First Class, Dhule for complying with the provisions
under Section 202 of Cr.P.C. The learned Magistrate ought to
have postponed the issuance of process. Hence, the order dated
22nd June, 2012 being at premature stage deserves to be quashed
and set aside. It is made clear that the complaint has not been
quashed in this petition and that the matter is remanded only

for complying with the provisions under Section 202 of Cr.P.C.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 5934 OF 2013

Deepak Damu Mahale, Vs The State of Maharashtra.


 CORAM : SMT. SADHANA S. JADHAV, J.
 DATED : APRIL 21ST, 2015.
Citation; 2015 ALLMR (CRI)4354

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Whether it is necessary for magistrate to make enquiry U/S 202 of crpc in case accused is residing outside jurisdiction of court?

I am of the view that the aforesaid provisions under the Negotiable Instrument Act, 1881 override the provisions under Sections 200/202 of the Code of Criminal Procedure. Hence in the matter of prosecution under Section 138 of the Negotiable Instrument Act, 1881 when affidavit evidence has been filed at pre-summoning stage in due compliance of provisions of the said Act, the issue of postponing process in view of the amendment to Section 202 of the Code of Criminal Procedure does not arise.

Kolkata High Court (Appellete Side)

Nirmal Khandelwal vs M/S. Terai Dooars Tea Co. Pvt. Ltd. ... on 27 November, 2014

Author: Joymalya Bagchi

Citation; 2015(3) Crimes 324 Cal 


 

Order dated 24.09.2013 passed by the learned Chief Judge,

City Sessions Court at Calcutta affirming the order dated
29.07.2013

passed by the learned 17th Metropolitan Magistrate, Calcutta in Complaint Case No. 18808 of 2007 under Section 138 of the Negotiable Instrument Act, 1881 has been assailed in this revision petition.

The petitioner is facing prosecution of commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881.

It is the contention of the petitioner that the petitioner resides out of the territorial jurisdiction of the learned Magistrate and the learned Magistrate failed and neglected to comply with the mandatory requirement under Section 202 of the Code of Criminal Procedure at the time of issuance of process. Decision of Apex Court in National Bank of Oman Vs. Barakara Abdul Aziz & Anr., (2013) 1 C Cr L R (SC) 585 is relied upon in support of such contention.

Ms. Mitra, learned counsel appearing for the petitioner submitted that the learned Courts below erred in law in failing to appreciate that non-compliance of mandatory provision of Section 202 of the Code of Criminal Procedure renders the consequential proceeding invalid. She further submitted that as the evidence in the instant case has not been recorded as yet, the petitioner may be allowed and the matter may be remanded for enquiry under Section 202 of the Code of Criminal Procedure.

Mr. Bhattacharya, learned counsel appearing on behalf of the opposite party no.1 submits that no prejudice has been suffered by the petitioner as the latter carries on business under Section 202of the Code of Criminal Procedure. He has submitted that the affidavit evidence under Section 145 of the Negotiable Instrument Act, 1881 having been filed at the pre-summoning stage, remand of the matter for further enquiry under Section 202 of the Code of Criminal Procedure would result in unnecessary delay. He prayed for dismissal of the revision petition. That apart in view of the special provision under the Negotiable Instrument Act, 1881, the compliance ofSection 202 of the Code of Criminal Procedure is not necessary.

I have considered the rival submissions of the parties as well as the materials on record. I find that from the averments made in the petition of complaint as well as the revision petition that the petitioner is carrying on business within the territorial jurisdiction of the learned Magistrate.

That apart, I am of the opinion that prosecution under Section 138 of the Negotiable Instrument Act, 1881, being a special law is governed by the provisions of the said Act, which naturally overrides the general provision under the Code of Criminal Procedure.

The provisions of the Sections 143 and 147 of the Negotiable Instrument Act, 1881 lays down a special procedure for conducting the trial of such cases so as to ensure its quick disposal. The complainant is entitled to file evidence by way of affidavit. It is settled law that the initial deposition of complainant may also be filed by way of affidavit. In Indian Bank Association & Ors. - Vs. - Union of India & Ors. reported in (2014) 5 SCC 590 the Apex Court, inter alia, held that affidavit evidence may be used both at the pre-summoning and post-summoning stage. The Court laid down the manner in which cognizance is to be taken and process be issued and trial conducted for speedy disposal of such cases. The Court held as follows:

"18. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post-summoning stage. In other words, there is no necessity to recall and re-examine the complainant after summoning of the accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo motu by the court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g)CrPC and his examination, if any, can be done by a Magistrate and a finding can be given by the court under Section 263(h) CrPC and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if provisos (a), (b) and (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences."

Accordingly, the Court laid down the following guidelines:- "23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.

23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.

23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.

23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court."

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