2010 (7) TMI 1140 - HC - Indian Laws

Magistrate's Discretion in Section 138 Cases: Directory vs. Mandatory Provision

Shri Bansilal S. Kabra Versus Global Trade Finance Ltd & Anr.

The Court held that the provision in Section 202(1) of the Criminal Procedure Code is directory, not mandatory, in cases under Section 138 of the ... Application u/s 482 of the CrPC - quashing the issuance of process by the Magistrate - Section 138 of the NI Act - HELD THAT:- I am of the view that the said provision may not apply to the provisions of Negotiable Instruments Act and merely because the accused reside outside the jurisdiction of the court, in each and every case it is not necessary for the Magistrate to postpone the issuance of process. The Magistrate, in my view, can exercise his discretion and decide whether to issue process, dismiss the complaint after recording the verification of the complainant and his witnesses, if any, or postpone the issuance of process and in a given case hold a further inquiry, depending on facts and circumstances of each case and non-compliance of the said provision would not vitiate the issuance of process if there is material to indicate that there has been an application of mind on the part of the Magistrate after going through the verification and other material brought on record by the complainant. In the present case, large number of applications have been filed u/s 482 of the CrPC, alleging non-compliance of the provisions of section 202 and a relief is claimed that the process issued by the Magistrate may be quashed. If there are conflicting judgments of the same High Court, it would create uncertainty in the mind of the learned Magistrate regarding course of action which has to be followed by him and, therefore, in my view, this is an important issue which needs to be finally resolved by the Division Bench or larger Bench of this Court. Office is directed to place the judgment and order of this Court before Hon’ble the Chief Justice. Issues Involved:1. Quashing the issuance of process under Section 138 of the Negotiable Instruments Act.2. Interpretation of Section 202(1) of the Criminal Procedure Code (Cr.P.C.) as amended in 2005.3. Whether the amended provision of Section 202(1) is mandatory or directory.Detailed Analysis:Quashing the Issuance of Process under Section 138 of the Negotiable Instruments Act:The applicant filed an application under Section 482 of the Cr.P.C. to quash the issuance of process by the Magistrate in a complaint under Section 138 of the Negotiable Instruments Act. The primary contention was that the Magistrate did not follow the mandatory procedure under Section 202(1) Cr.P.C. before issuing the process.Interpretation of Section 202(1) of the Criminal Procedure Code as Amended in 2005:The applicant argued that since he resides outside the jurisdiction of the Court, the Magistrate was required to follow the procedure under Section 202(1) Cr.P.C., which mandates postponement of issuance of process and conducting an inquiry. The applicant relied on the judgment in Capt. S.C. Mathur's case, which held that the provision is mandatory.On the contrary, the respondent argued that the provision is not mandatory in cases under Section 138 of the Negotiable Instruments Act. The respondent cited Section 4 of the Cr.P.C., which states that Sections 138 to 142 of the Negotiable Instruments Act form a self-contained code. The respondent also referred to various judgments, including those of the Kerala High Court and the Madras High Court, which held that the provision is directory.Whether the Amended Provision of Section 202(1) is Mandatory or Directory:The Court examined the relevant provisions of the Cr.P.C. and the Negotiable Instruments Act. It noted that the purpose of the amendment to Section 202(1) was to prevent harassment of accused persons residing outside the jurisdiction of the Court by requiring the Magistrate to conduct an inquiry before issuing process.The Court observed that the word 'shall' in the amended provision does not necessarily make it mandatory. The intention of the legislature was to ensure that the Magistrate applies his mind before issuing process, especially when the accused resides outside the jurisdiction. The Court referred to various judgments, including those of the Apex Court and other High Courts, which have held that the provision is directory.The Court concluded that in cases under Section 138 of the Negotiable Instruments Act, the Magistrate has the discretion to decide whether to issue process, dismiss the complaint, or postpone the issuance of process and conduct an inquiry. The Court held that non-compliance with the provision does not vitiate the issuance of process if there is material to indicate that the Magistrate has applied his mind.Conclusion:The Court disagreed with the judgment in Capt. S.C. Mathur's case and held that the provision is directory. The Court directed that the matter be placed before the Chief Justice for final resolution by a Division Bench or a larger Bench due to conflicting judgments on the issue.Significant Phrases and Legal Terminology:- 'Quashing the issuance of process'- 'Section 138 of the Negotiable Instruments Act'- 'Section 202(1) of the Criminal Procedure Code'- 'Mandatory or directory'- 'Application of mind'- 'Self-contained code'- 'Judicial discipline and propriety'- 'Division Bench or larger Bench'This comprehensive analysis ensures that the legal terminology and significant phrases from the original text are preserved while providing a detailed understanding of the judgment.