2024 (2) TMI 244 - HC - Indian Laws

Section 202(1) CrPC amendment makes pre-process inquiry mandatory for accused outside jurisdiction, not discretionary

The Bombay HC held that the amendment to Section 202(1) CrPC requiring inquiry before issuing process against accused residing outside court jurisdiction ... Inquiry before issuance of process - 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? - HELD THAT:- 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. 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. The reference is answered accordingly. Issues involved:1. Interpretation of amendment in Section 202, sub-clause (1) of the Code of Criminal Procedure - discretionary or mandatory.2. Whether an inquiry under Section 202 of the Cr.P.C is mandatory or directory in nature.Issue 1:The judgment addressed the cleavage of opinion regarding the amendment in Section 202 of the Code of Criminal Procedure, specifically on whether the inquiry before issuance of process by the Magistrate, when the accused resides outside the jurisdiction of the Court, is discretionary or mandatory. The larger Bench was constituted to resolve this disagreement between Justice V.M. Kanade and Justice S.C. Dharmadhikari. The matter was revisited after the Apex Court's decision on an Appeal in 2021, which led to the reconstitution of the larger Bench.Issue 2:The judgment highlighted the necessity of an inquiry under Section 202 of the Cr.P.C in cases where the accused resides beyond the jurisdiction of the Court. It referenced the Constitution Bench's decision on the expeditious trial of cases under Section 138 of the Negotiable Instruments Act, 1881, which emphasized the mandatory nature of the inquiry. The judgment clarified that the Magistrate may examine witnesses on affidavit and need not insist on evidence on oath, aligning with the Supreme Court's interpretation.Separate Judgment:The judgment did not mention any separate judgment delivered by the judges.