Case Note & Summary
The applicants, eight individuals including Harish Ukey and others, filed a criminal application under Section 482 of the Criminal Procedure Code, 1973 before the Bombay High Court, Nagpur Bench, challenging an order dated 12th January, 2015 passed by the 5th Judicial Magistrate, First Class, Akola. The Magistrate had issued process against them in a complaint filed by the respondent, Sau. Kiranlata Ukey, alleging offences under the Dowry Prohibition Act, 1961 and the Indian Penal Code, 1860. The applicants contended that the Magistrate failed to comply with the mandatory requirement of Section 202 of the Criminal Procedure Code, which was amended by the Amendment Act, 2005. Specifically, since all applicants resided outside the territorial jurisdiction of the Akola court, the Magistrate was required to postpone the issuance of process and conduct an inquiry either by himself or through a police officer to determine whether sufficient grounds existed to proceed. The applicants argued that this non-compliance vitiated the order. The respondent opposed the application, but the court found merit in the applicants' submissions. The High Court, relying on the Supreme Court decisions in National Bank of Oman vs. Barakara Abdul Aziz and another (2013) 2 SCC 488 and Udai Shankar Awasthi vs. State of Uttar Pradesh and another (2013) 2 SCC 435, held that the Magistrate's order was unsustainable. The court quashed the impugned order and remanded the matter back to the Magistrate for fresh consideration after complying with the mandatory inquiry under Section 202 CrPC. The court clarified that it had not expressed any opinion on the merits of the complaint and that the Magistrate would decide the matter afresh in accordance with law.
Headnote
A) Criminal Procedure Code - Section 202 - Mandatory Inquiry - Process Issuance - Where accused persons reside outside the territorial jurisdiction of the Magistrate, the Magistrate must postpone issuance of process and conduct an inquiry or direct investigation to ascertain sufficiency of grounds for proceeding - Failure to do so vitiates the order - Held that the order dated 12th January, 2015 passed by the 5th Judicial Magistrate, First Class, Akola is set aside and the matter is remanded for fresh consideration after complying with Section 202 CrPC (Paras 2-6).
Issue of Consideration
Whether the Magistrate's order issuing process against applicants who reside outside the territorial jurisdiction of the court is vitiated for non-compliance with the mandatory inquiry under Section 202 of the Criminal Procedure Code, 1973 (as amended by the Amendment Act, 2005).
Final Decision
The High Court allowed the criminal application, quashed the order dated 12th January, 2015 passed by the 5th Judicial Magistrate, First Class, Akola, and remanded the matter back to the Magistrate for fresh consideration after complying with the mandatory inquiry under Section 202 CrPC. The court clarified that it had not expressed any opinion on the merits of the complaint.
Law Points
- Section 202 CrPC mandatory inquiry
- territorial jurisdiction
- process issuance
- amendment 2005
- accused residing outside jurisdiction
Case Details
2016 LawText (BOM) (07) 138
Criminal Application (APL) No.257 of 2016
Shri S.A. Mohta for the Applicants, Shri V.V. Meshram for the Respondent
Harish s/o. Rameshrao Ukey and others
Sau. Kiranlata w/o. Harish Ukey
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal application under Section 482 CrPC seeking quashing of order issuing process in a complaint under Dowry Prohibition Act and IPC.
Remedy Sought
Applicants sought quashing of the order dated 12th January, 2015 passed by the 5th Judicial Magistrate, First Class, Akola issuing process against them.
Filing Reason
The Magistrate failed to comply with the mandatory inquiry under Section 202 CrPC before issuing process, as the applicants resided outside the territorial jurisdiction of the Akola court.
Previous Decisions
The 5th Judicial Magistrate, First Class, Akola passed the order issuing process on 12th January, 2015.
Issues
Whether the Magistrate's order issuing process is vitiated for non-compliance with Section 202 CrPC when the accused reside outside the court's territorial jurisdiction.
Submissions/Arguments
Applicants argued that the Magistrate did not follow the mandate of Section 202 CrPC (as amended in 2005) which requires postponement of process and an inquiry when accused reside outside jurisdiction.
Respondent opposed the application, but the court found merit in the applicants' submissions.
Ratio Decidendi
Under Section 202 of the Criminal Procedure Code, 1973 (as amended by the Amendment Act, 2005), when the accused persons reside outside the territorial jurisdiction of the Magistrate, the Magistrate must postpone the issuance of process and conduct an inquiry either by himself or through a police officer to determine whether sufficient grounds exist to proceed. Failure to do so vitiates the order issuing process.
Judgment Excerpts
It is the contention of the learned counsel for the applicants that while issuing process, by the order passed on 12th January, 2015, the learned 5th Judicial Magistrate, First Class, Akola has not followed the mandate of Section 202 of the Criminal Procedure Code, which has been newly amended by the Amendment Act, 2005 and, therefore, the order is vitiated.
He also submits that when it is an admitted fact that all the applicants, who are the proposed accused persons are not the residents of the place within the territorial jurisdiction of Akola Court, this very fact required the learned Magistrate, as per Section 202 Criminal Procedure Code, to postpone the issuance of process and make an enquiry either by himself or investigation through a Police Officer in order to find out as to whether or not there is sufficient material for proceeding further in the matter.
Procedural History
The respondent filed a complaint before the 5th Judicial Magistrate, First Class, Akola under the Dowry Prohibition Act, 1961 and the Indian Penal Code, 1860. On 12th January, 2015, the Magistrate issued process against the applicants. The applicants then filed Criminal Application (APL) No.257 of 2016 under Section 482 CrPC before the Bombay High Court, Nagpur Bench, challenging the order. The High Court heard the matter and delivered judgment on 20th July, 2016.
Acts & Sections
- Criminal Procedure Code, 1973: 202, 482
- Dowry Prohibition Act, 1961:
- Indian Penal Code, 1860:
