Case Note & Summary
The petitioners, who are the wife, father-in-law, mother-in-law, and brother-in-law of the complainant (respondent No. 2), challenged the order of the Judicial Magistrate First Class, Udgir, issuing process against them in a private complaint. The limited challenge was that the Magistrate issued process without conducting an inquiry under Section 202 of the Code of Criminal Procedure, 1973 (CrPC), which is mandatory when the accused resides outside the Magistrate's jurisdiction. The petitioners reside in Aurangabad, which is outside the territorial jurisdiction of the Udgir court. The learned counsel for the petitioners argued that the amendment to Section 202 CrPC, effective from 23/06/2006, mandates such an inquiry before issuing process. The respondent No. 2 (complainant) and the State did not dispute this legal position. The court, after hearing the parties, held that the Magistrate failed to comply with the mandatory requirement of Section 202 CrPC. Consequently, the order issuing process was quashed and set aside, and the matter was remanded back to the Magistrate to conduct an inquiry under Section 202 CrPC and then pass a fresh order. The court clarified that it had not expressed any opinion on the merits of the complaint.
Headnote
A) Criminal Procedure - Issuance of Process - Section 202 CrPC - Mandatory Inquiry - Where the accused resides outside the territorial jurisdiction of the Magistrate, the Magistrate is required to conduct an inquiry under Section 202 CrPC before issuing process. The amendment to Section 202 CrPC effective from 23/06/2006 makes such inquiry mandatory. Failure to do so renders the order of issuance of process illegal and liable to be quashed. (Paras 3-6)
Issue of Consideration
Whether the issuance of process against the petitioners without conducting an inquiry under Section 202 of the Code of Criminal Procedure, 1973, is sustainable in law when the petitioners reside outside the territorial jurisdiction of the Magistrate.
Final Decision
The impugned order issuing process is quashed and set aside. The matter is remanded back to the Judicial Magistrate First Class, Udgir, to conduct an inquiry under Section 202 of the Code of Criminal Procedure and then pass a fresh order in accordance with law. The court clarified that it has not expressed any opinion on the merits of the complaint.
Law Points
- Section 202 CrPC mandatory inquiry before issuing process when accused resides outside jurisdiction
- Amendment to Section 202 CrPC effective 23/06/2006
- Non-compliance renders process illegal
Case Details
2017 LawText (BOM) (09) 52
Criminal Writ Petition No. 1404 of 2016
Mr. R.S. Deshmukh for Petitioners, Mr. G.O. Wattamwar, A.P.P. for Respondent 1 – State, Mr. Ajinkya S. Reddy for Respondent 2
Asma w/o Moinoddin @ Shaker Quazi, Shafiyoddin Ahmed Shaikh, Mehruneesa w/o Shafiyoddin Shaikh, Azaroddin s/o Shafiyoddin Shaikh
The State of Maharashtra, Moinoddin @ Shaker s/o Shirajoddin Quazi
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition challenging the order of issuance of process in a private complaint.
Remedy Sought
Quashing of the order issuing process against the petitioners.
Filing Reason
The Magistrate issued process without conducting an inquiry under Section 202 CrPC, which is mandatory when the accused resides outside the jurisdiction.
Previous Decisions
The Judicial Magistrate First Class, Udgir, passed an order issuing process against the petitioners.
Issues
Whether the issuance of process without conducting an inquiry under Section 202 CrPC is sustainable when the accused resides outside the jurisdiction of the Magistrate.
Submissions/Arguments
Petitioners argued that the Magistrate failed to conduct the mandatory inquiry under Section 202 CrPC before issuing process, as the petitioners reside outside the territorial jurisdiction of the Udgir court.
Respondent No. 2 and the State did not dispute the legal position regarding the mandatory nature of the inquiry.
Ratio Decidendi
The amendment to Section 202 CrPC effective from 23/06/2006 makes it mandatory for the Magistrate to conduct an inquiry before issuing process when the accused resides outside the territorial jurisdiction of the Magistrate. Non-compliance renders the order of issuance of process illegal and liable to be quashed.
Judgment Excerpts
In view of the limited challenge raised in the petition confined to issuance of process without conducting inquiry as contemplated u/s 202 of Cr.P.C., it is not necessary to discuss the facts in detail.
The learned counsel for the petitioners invited attention to the impugned order and submitted that in view of the amendment made to section 202 of Code of Criminal Procedure which is brought into effect from 23/06/2006 before passing order of issuance of process, the Magistrate ought to have conducted inquiry as contemplated u/s 202 of Cr.P.C.
The learned A.P.P. and the learned counsel for respondent No. 2 could not dispute the legal position that in view of the amendment to section 202 of Cr.P.C., it is mandatory for the Magistrate to conduct inquiry before issuance of process.
Procedural History
The petitioners filed a criminal writ petition before the Bombay High Court, Aurangabad Bench, challenging the order of the Judicial Magistrate First Class, Udgir, issuing process against them in a private complaint. The petition was heard and disposed of by the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 202
