Case Note & Summary
The case involves a reference to a larger Bench of the Bombay High Court to resolve a cleavage of opinion on whether the amendment to Section 202(1) of the Code of Criminal Procedure, 1973 (CrPC), which mandates an inquiry before issuance of process when the accused resides outside the court's jurisdiction, is directory or mandatory. Justice V.M. Kanade (as he then was) in Criminal Application No. 1344 of 2010 expressed the view that the amendment is directory, while Justice S.C. Dharmadhikari (as he then was) in Criminal Application No. 2640/2009 held it to be mandatory. The reference was deferred due to a pending appeal before the Supreme Court, which was decided on 23/9/2021. Subsequently, the matter was placed before the reconstituted larger Bench on 31/10/2023. The Court noted that with the passage of time, there has been further evolution of law, and the Constitution Bench of the Apex Court in suo motu Writ Petition (CRL) No.2 of 2020 (Re: Expeditious Trial of Cases under Section 138 of the N.I. Act, 1881) dated 16/4/2021 has categorically held that the provision is mandatory. The Court, after hearing the parties, concluded that the conundrum has been put to rest by the Apex Court's decision, and thus the amendment is mandatory. The Court did not need to independently decide the issue as it was already settled by the higher court.
Headnote
A) Criminal Procedure - Inquiry under Section 202 CrPC - Mandatory Nature - Amendment to Section 202(1) CrPC by Act 25 of 2005 - The issue was whether the provision requiring inquiry before issuance of process when accused resides outside jurisdiction is directory or mandatory - The larger Bench, relying on the Constitution Bench decision in Re: Expeditious Trial of Cases under Section 138 of N.I. Act, 1881, held that the provision is mandatory - The conundrum is put to rest by the Apex Court's decision (Paras 1-3).
Issue of Consideration
Whether the amendment in Section 202(1) of the Code of Criminal Procedure, 1973, which contemplates an inquiry before issuance of process by the Magistrate where the accused is residing outside the jurisdiction of the court, is discretionary or mandatory.
Final Decision
The larger Bench, relying on the Constitution Bench decision of the Supreme Court in Re: Expeditious Trial of Cases under Section 138 of N.I. Act, 1881, held that the amendment to Section 202(1) CrPC is mandatory. The conundrum is put to rest.
Law Points
- Section 202 CrPC amendment mandatory
- inquiry before process for accused outside jurisdiction
- directory vs mandatory interpretation resolved
Case Details
2024 LawText (BOM) (01) 162
Criminal Application No. 1344 of 2010
Devendra Kumar Upadhyaya, C.J., Bharati Dangre, J., Arif S. Doctor, J
Arun Mehta with Aniket Srivastav for applicant, Yashpal Thakur with Mukund Pandya for respondent no.1, H.S. Venegaonkar, P.P. for State
Global Trade Finance Limited & Anr
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Nature of Litigation
Reference to larger Bench to resolve conflict of opinion on interpretation of Section 202(1) CrPC amendment.
Remedy Sought
Determination of whether the amendment to Section 202(1) CrPC is directory or mandatory.
Filing Reason
Cleavage of opinion between two Single Judges of the Bombay High Court on the nature of the amendment.
Previous Decisions
Justice V.M. Kanade held amendment directory; Justice S.C. Dharmadhikari held it mandatory. Appeal pending before Supreme Court was decided on 23/9/2021.
Issues
Whether the amendment to Section 202(1) CrPC, requiring inquiry before issuance of process when accused resides outside jurisdiction, is directory or mandatory.
Submissions/Arguments
Applicant argued that the provision is directory.
Respondent and State argued that the provision is mandatory.
Ratio Decidendi
The amendment to Section 202(1) CrPC, which mandates an inquiry before issuance of process when the accused resides outside the jurisdiction of the court, is mandatory in nature, as held by the Constitution Bench of the Supreme Court.
Judgment Excerpts
In light of the cleavage of opinion on the aspect 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, a larger Bench was constituted.
With the passage of the time, since the reference was made, there is further evolution of law on the aspect involved and though there are decisions from this Court as well as the higher Court, which have categorically held that the provision is mandatory in nature, in our opinion, the conundrum has been put to rest by the Constitution Bench of the Apex Court in suo motu Writ Petition (CRL) No.2 of 2020 in Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF THE N.I. Act, 1881.
Procedural History
Criminal Application No. 1344 of 2010 was filed by Bansilal S. Kabra. Justice V.M. Kanade expressed view that amendment is directory, disagreeing with Justice S.C. Dharmadhikari who held it mandatory. Reference to larger Bench was made. Appeal (Criminal Appeal No. 276/2013) was pending before Supreme Court, decided on 23/9/2021. Matter placed before reconstituted larger Bench on 31/10/2023. Heard on 16/1/2024.
Acts & Sections
- Code of Criminal Procedure, 1973: 202(1)
- Negotiable Instruments Act, 1881: 138, 145
