Case Note & Summary
The applicants, M/s International Tractors Ltd and its Managing Director Deepak Mittal, residents of Hoshiarpur, Punjab, filed a criminal application under Section 482 Cr.P.C. seeking to quash the order of issuance of process dated 22.3.2010 passed by the Judicial Magistrate, First Class, Corporation Court No.2, Nagpur in R.C.C. No. 3165/2009. The Magistrate had issued process for offences under Sections 403, 409, 420 read with Section 34 of the Indian Penal Code based on a complaint filed by Harivansh Agencies through its proprietor Vijay Bajranglal Murarka. The applicants contended that since they resided outside the territorial jurisdiction of the Nagpur court, the Magistrate was required under the amended Section 202 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to conduct an inquiry and examine witnesses on oath before issuing process. The learned counsel for the applicants, Mr. R.P. Joshi, relied on the Supreme Court decision in K.T. Joseph v. State of Kerala (2009) 15 SCC 199, which held that the amendment to Section 202 Cr.P.C. by Act 25/2005 with effect from 23rd June 2006 made it mandatory for the Magistrate to conduct an inquiry when the accused resides outside his jurisdiction. The respondent's counsel, Mr. Ujwal Phasate, did not dispute this legal position. The High Court, per Justice A.P. Bhangale, allowed the application, set aside the impugned order of issuance of process, and remanded the matter to the trial court for fresh consideration in accordance with law, specifically directing the Magistrate to conduct an inquiry under Section 202 Cr.P.C. and examine witnesses on oath before deciding whether to issue process.
Headnote
A) Criminal Procedure - Issuance of Process - Section 202 Cr.P.C. - Mandatory Inquiry - Where the accused resides outside the territorial jurisdiction of the Magistrate, it is mandatory to conduct an inquiry under Section 202 Cr.P.C. and examine witnesses on oath before issuing process - The amendment to Section 202 Cr.P.C. by Act 25/2005 with effect from 23rd June 2006 makes such inquiry obligatory - Failure to do so renders the order of issuance of process illegal and liable to be set aside (Paras 2-5).
Issue of Consideration
Whether the issuance of process against the applicants, who are residents of Hoshiarpur (Punjab), without conducting an inquiry under Section 202 Cr.P.C. as mandated by the amended provision, is sustainable in law.
Final Decision
The High Court allowed the criminal application, set aside the impugned order of issuance of process dated 22.3.2010, and remanded the matter to the trial court for fresh consideration in accordance with law. The trial court was directed to conduct an inquiry under Section 202 Cr.P.C. and examine witnesses on oath before deciding whether to issue process against the applicants.
Law Points
- Mandatory inquiry under Section 202 Cr.P.C. when accused resides outside jurisdiction
- Necessity of examining witnesses before issuance of process
- Amendment to Section 202 Cr.P.C. by Act 25/2005
Case Details
2011 LawText (BOM) (11) 91
Criminal Application (A.P.L.) No. 98/2011
Mr. R.P. Joshi for applicants, Mr. Ujwal Phasate for respondent
M/s International Tractors Ltd and Deepak Mittal
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal application under Section 482 Cr.P.C. for quashing of order of issuance of process.
Remedy Sought
Setting aside the impugned order of issuance of process dated 22.3.2010 passed by the Judicial Magistrate, First Class, Corporation Court No.2 Nagpur in R.C.C. No. 3165/2009.
Filing Reason
The applicants, residents of Hoshiarpur (Punjab), were aggrieved by the issuance of process against them without conducting a mandatory inquiry under Section 202 Cr.P.C. as they resided outside the territorial jurisdiction of the trial court.
Previous Decisions
The learned Judicial Magistrate, First Class, Corporation Court No.2 Nagpur passed the order of issuance of process on 22.3.2010 in R.C.C. No. 3165/2009 after perusing the complaint, recording verification, and perusing documents.
Issues
Whether the issuance of process against the applicants, who are residents of Hoshiarpur (Punjab), without conducting an inquiry under Section 202 Cr.P.C. as mandated by the amended provision, is sustainable in law.
Submissions/Arguments
Mr. R.P. Joshi, learned counsel for the applicants, submitted that the accused were residents of Hoshiarpur (Punjab) and placed beyond the jurisdiction of the trial Magistrate. He relied on K.T. Joseph v. State of Kerala (2009) 15 SCC 199 to argue that the amended Section 202 Cr.P.C. makes it mandatory for the Magistrate to conduct an inquiry and examine witnesses on oath before issuing process when the accused resides outside his jurisdiction.
Mr. Ujwal Phasate, learned counsel for the respondent, did not dispute the legal position.
Ratio Decidendi
The amendment to Section 202 Cr.P.C. by Act 25/2005 with effect from 23rd June 2006 makes it mandatory for the Magistrate to conduct an inquiry and examine witnesses on oath before issuing process when the accused resides outside the territorial jurisdiction of the court. Failure to do so renders the order of issuance of process illegal and liable to be set aside.
Judgment Excerpts
By means of this Petition, the petitioners prayed for setting aside the impugned order of issuance of process dated 22.3.2010 passed by the learned Judicial Magistrate, First Class, Corporation Court No.2 Nagpur for the offence punishable under sections 403, 409, 420 read with Section 34 of the Indian Penal Code in R.C.C. No. 3165/2009 passed against the applicants.
It is the grievance of the applicants that both the accused against whom a complaint was lodged were resident of Hoshiarpur (Punjab) and, as such, placed beyond the jurisdiction of the learned trial Magistrate.
Mr. R P Joshi, learned Advocate for the applicants submitted with reference to the ruling in K.T.Joseph vs. State of Kerala & another reported in (2009) 15 SCC page 199 wherein the Apex Court considered the necessity of enquiry under section 202 of the Code of Crime Procedure, 1973 ( in short" "Cr.P.C.") as Section 202 of Cr.P.C. was amended with effect from 23rd June 2006 by Central Amending Act 25/2005.
Thus, considering the amended provision it is mandatory on the part of the learned Magistrate to conduct an enquiry under section 202 of the Cr.P.C. He shall consider the sworn statements of the witnesses at the stage of cognizance as it became mandatory particularly when the accused are resident of a place beyond the area in which he exercises his jurisdiction.
Procedural History
The respondent filed a complaint in R.C.C. No. 3165/2009 before the Judicial Magistrate, First Class, Corporation Court No.2 Nagpur. The Magistrate issued process on 22.3.2010 against the applicants for offences under Sections 403, 409, 420 read with Section 34 IPC. The applicants then filed Criminal Application (A.P.L.) No. 98/2011 under Section 482 Cr.P.C. before the High Court of Judicature at Bombay, Bench at Nagpur, seeking to quash the order of issuance of process. The High Court allowed the application on 21.11.2011, setting aside the order and remanding the matter for fresh consideration.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 202
- Indian Penal Code, 1860 (IPC): 403, 409, 420, 34
