Mandatory Section 202 inquiry may rely on affidavits and supporting documents when accused lives outside jurisdiction.
When the accused resides outside the Magistrate's territorial jurisdiction, the inquiry under Section 202 CrPC is mandatory, but it is not confined to any rigid form. The Magistrate may rely on the complaint, cheque, return memo, notice, acknowledgment, and other supporting material, including an affidavit filed with the complaint, to decide whether a prima facie case exists. An affidavit sworn before a notary public is permissible material for this purpose under the CrPC and the Negotiable Instruments Act. The process order was therefore sustained because the record showed due application of mind and compliance with the mandatory inquiry requirement.
Issues: (i) whether, where the accused resides outside the territorial jurisdiction of the Magistrate, the inquiry contemplated by Section 202 of the Code of Criminal Procedure, 1973 was duly complied with before issuance of process; (ii) whether an affidavit filed in support of the complaint, sworn before a notary public, could constitute part of the inquiry and sustain the order issuing process.
Issue (i): whether, where the accused resides outside the territorial jurisdiction of the Magistrate, the inquiry contemplated by Section 202 of the Code of Criminal Procedure, 1973 was duly complied with before issuance of process.
Analysis: The amended provision makes inquiry mandatory when the accused is outside jurisdiction, but it does not prescribe a rigid manner of inquiry. The record showed that the Magistrate considered the cheque, return memo, notice, acknowledgment, and other supporting material before forming an opinion that a prima facie case existed. The absence of an express reference to the affidavit in the process order did not by itself show non-compliance, because the affidavit had already been filed and formed part of the material considered.
Conclusion: The mandatory requirement of inquiry was complied with, and the challenge on this ground failed.
Issue (ii): whether an affidavit filed in support of the complaint, sworn before a notary public, could constitute part of the inquiry and sustain the order issuing process.
Analysis: Section 145 of the Negotiable Instruments Act, 1881 permits evidence by affidavit, and Section 297(1)(c) of the Code of Criminal Procedure, 1973 authorises affidavits sworn before a notary public. There was therefore no legal impediment in relying on such an affidavit during the inquiry under Section 202. The filing of the affidavit before issuance of process supported the Magistrate's satisfaction and the order did not become invalid merely because the word 'affidavit' was not specifically mentioned.
Conclusion: The affidavit was valid and could be relied upon for the purpose of inquiry, so this contention also failed.
Final Conclusion: The impugned orders were upheld because the Magistrate had complied with the mandatory inquiry requirement and had applied mind to the material before issuing process.
Ratio Decidendi: When the accused resides outside the Magistrate's jurisdiction, compliance with Section 202 is mandatory, but the inquiry may be satisfied by consideration of affidavits and documents, and an order issuing process will not be vitiated if the material shows due application of mind.
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