Case Note & Summary
The applicants, Damodar Prasad Maheshwari (Somani) and Dr. Santosh Damodar Prasad Maheshwari (Somani), were original accused Nos. 1 and 3 in R.C.C. No. 239/2012 filed by respondent No. 1, Sagar Onkardas Nyati, before the Chief Judicial Magistrate, Jalgaon. The Magistrate issued process against the applicants but declined to issue process against accused No. 2, Trivenidevi, observing that her contribution was not well-founded. The applicants challenged the order issuing process by filing Criminal Application No. 6821 of 2013 before the High Court of Judicature at Bombay, Bench at Aurangabad. The applicants' counsel argued that since the applicants were not residents of the local jurisdiction of the Jalgaon court, the Magistrate was required under Section 202 of the Criminal Procedure Code, 1973 (Cr.P.C.) to conduct an enquiry himself or direct an investigation before issuing process. Reliance was placed on the Supreme Court judgment in National Bank of Oman v. Barakara Abdul Aziz & anr., (2013) 2 SCC 488. The respondent's counsel did not oppose the application and submitted that the court may pass suitable orders in view of the said judgment. The High Court perused the complaint and found that the applicants were residents of Kolkata and Coimbatore, respectively, which are outside the territorial jurisdiction of the Jalgaon court. The court held that in view of the amendment to Section 202 Cr.P.C., it was mandatory for the Magistrate to conduct an enquiry or direct investigation before issuing process against accused persons residing outside his jurisdiction. Since no such procedure was followed, the order issuing process was not maintainable. The court allowed the application, quashed the order issuing process against the applicants, and directed the Magistrate to decide the complaint afresh after complying with Section 202 Cr.P.C.
Headnote
A) Criminal Procedure Code - Section 202 Cr.P.C. - Mandatory Enquiry - Process Issuance - Where accused persons reside outside the territorial jurisdiction of the Magistrate, it is mandatory under Section 202 Cr.P.C. to conduct an enquiry or direct investigation before issuing process - The Magistrate failed to do so, rendering the process illegal - Held that the order issuing process is not maintainable and is quashed (Paras 3-6).
Issue of Consideration
Whether the Magistrate was required to conduct an enquiry or direct investigation under Section 202 Cr.P.C. before issuing process against accused persons who were not residents of the local jurisdiction of the court.
Final Decision
The application is allowed. The order issuing process against the applicants is quashed. The Chief Judicial Magistrate, Jalgaon is directed to decide the complaint afresh after complying with the provisions of Section 202 Cr.P.C.
Law Points
- Section 202 Cr.P.C. mandatory enquiry
- process issuance against accused residing outside jurisdiction
- National Bank of Oman v. Barakara Abdul Aziz
