TaxTMI 
TaxTMI 
2019 (3) TMI 544
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....isions are dismissed by the Sessions Court. 3) The aforesaid relief is claimed on many grounds. One of the grounds is non compliance of the provision of section 202 of the Code of Criminal Procedure by the Judicial Magistrate, First Class before issuing process in all the three matters. The accused persons are residents of Mumbai. This Court is deciding the writ petitions only on that ground and if the petitioners succeed in satisfying this Court that the said provision is mandatory in nature, there will be no need to consider other grounds of challenge. Both the sides placed reliance on many reported and un-reported cases decided by this Court, other High Courts and also by the Supreme Court. 4) The provision of section 202 of the Code of Criminal Procedure runs as under : "202. Postponement of issue of process.-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either in....
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....he Magistrate either to make inquiry as mentioned in section 202 to ascertain that there are sufficient grounds for proceeding against the accused, by amendment, the aforesaid portion came to be added in the provision and that procedure needs to be followed when the accused persons are not the residents of the area in which the Magistrate is expected to exercise the jurisdiction. The scheme of Chapter XV of the Cr.P.C. shows that in a case like present one, after complying the provision of section 200 of Cr.P.C it is open to the Magistrate to pass order under section 203 of Cr.P.C. In the past also, there was the discretion to the Magistrate after following the procedure given in section 200 of Cr.P.C. either to postpone the issue of process in a case like present one as provided under section 202 of Cr.P.C. or to make order of issue process. These circumstances need to be kept in mind for ascertaining as to whether the added portion of section 202 of Cr.P.C. is mandatory in nature. When the legislature takes such step, the Courts are expected to go with the presumption that there was specific intention of the legislature as mentioned in the object clause of the amendment and the C....
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.....J.(Cri.) 382 (Asma v. State of Maharashtra). (15) 2018(5) Mh.L.J.(Cri.) 737) Sudhir vs. Jagdamba Public Trust). (16) 2010 (3) Mh.L.J.(Cri.) 614 (Satish @ Rajendra v. state of Maharashtra). (17) 2013(1) Mh.L.J.(Cri.) 301 (Barakara vs. National Bank of Oman). (18) 2019 SCC OnLine Gau 17 (Kuljit Singh Sethi v. State of Assam). (19) S.K. Bhowmik v. S.K. Arora (Punjab & Haryana High Court) decided on 19-9-2007. (20) 2011(6) Mh.L.J. 893 (Rajeev v. State Bank of Mauritius). (21) 2011(4) Mh.L.J. 275 (ASR Systems v. K.C.H. Products). (22) 2010 SCC OnLine Bom 924 (Neeta Mukesh Jain v. State of Maharashtra). (23) 2016(5) Mh.L.J. 58 (Dr. Rajul vs. Reliance Capital Ltd.). (24) 2007 SCC OnLine Bom 815 (Bimal Singh Kothari v. State of Goa). (25) (2000) 2 SCC 230 (Rosy v. State of Kerala). (26) (2009) 15 SCC 199 (K.T. Joseph v. State of Kerala). (27) (2012) 10 SCC 517 (Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel). (28) (2013) 2 SCC 488 (National Bank of Oman v. Barakara Abdul Aziz). (29) (2013) 2 SCC 435 (Udai Shankar Awasthi v. State of U.P.). (30) (2014) 14 SCC 638 (Vijay Dhanuka v. Najima Mamtaj). (31) (2017) 3 SCC 528 (Abhij....
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....tained 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." The Full Bench considered the provision of section 146 of the Negotiable Instruments Act also and it provides as under : "146. Bank's slip prima facie evidence of certain facts.-- The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved." 10) It is laid down that the provisions of sections 145 and 146 are such that due to these provisions and particularly non obstante clause of section 145 this provision controls section 200 of Cr.P.C. and due to that the affidavits in evidence can be read even for the purpose of section 200 of Cr.P.C. In section 145 there are terms "inquiry and trial" and so it can be said that the evidence on affidavit can be used during inquiry which can be made under section 202 of Cr.P.C. ....
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....hat Chapter. It cannot be said that the Magistrate must act on the basis of the evidence on affidavit and other material produced by the complainant which can be done under sections 145 and 146 of the Negotiable Instruments Act. If that interpretation is done that will be against the intention of the legislature and in that case there will be possibility of issue of process against persons who may be innocent or who cannot be called by the Magistrate of that place for facing the trial. It is needless to mention that issuance of process in a criminal case is a serious matter, it is against the interests of the accused persons. 11) In the case of Vijay Dhanuka (cited supra) the Apex Court has considered the intention behind the amended section 202 of the Cr.P.C. vide Amendment Act No.25/2005 and it is held that it is mandatory in nature. In this case the Apex Court was interpreting the term "inquiry" used in section 202 of the Cr.P.C. and the difference between sections 200 and 202 of the Cr.P.C. is also given by the Apex Court. In that matter the Magistrate had examined the complainant on solemn affirmation and two witnesses were also examined and thereafter the Magistrate had di....
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....TPL 11033 Calcutta (S.S. Binu v. State of WB). (13) 2017 STPL 13206 SC (Meters and Instruments Pvt. Ltd. v. Kanchan Mehta). 12) 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) (2009) 15 SCC 199 (K.T. Josheph v. State of Kerala). (ii) (2013) 2 SCC 489 (National Bank of Oman v. Barakar Abdul Aziz). (iii) (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 ....