Harish S/O Rameshrao Ukey And Others vs Sau. Kiranlata W/O Harish Ukey on 20 July, 2016

[Cites 10, Cited by 2]

Bombay High Court

Harish S/O Rameshrao Ukey And Others vs Sau. Kiranlata W/O Harish Ukey on 20 July, 2016

2. It is the contention of the learned counsel for the applicants that while issuing process, by the order passed on 12 th 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 ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 3/10 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. Since this has not been done by the learned Magistrate, the impugned order cannot be sustained in law. In support, he places his reliance upon the cases of National Bank of Oman vs. Barakara Abdul Aziz and another, reported in (2013) 2 SCC 488 and Udai Shankar Awasthi vs. State of Uttar Pradesh and another, reported in (2013) 2 SCC 435. He also submits that the Akola Court does not have territorial jurisdiction as the offence was not committed within its territorial limit and the applicants are also not residents of any place falling within territorial limit of Akola Court.

3. Learned counsel for the respondent submits that the impugned order is legal and correct and as it has been judicially passed.

It is not open for this Court to substitute its view for the view taken by the Judicial Magistrate. He also submits that there are sufficient grounds for proceeding further in the matter and issuing process under Section 204 of the Criminal Procedure Code. As regards the inquiry to be made under Section 202 of the Criminal Procedure Code, learned counsel ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 4/10 submits that same has been made by the learned Magistrate. In support, he places his reliance upon the case of Smt. Nagawwa vs. Veeranna Shivallngappa Konjalgi, Judgment passed by the Hon'ble Supreme Court of India on 23.4.1976, and the judgment of the Madras High Court in the case of Appaiyam and another vs. R. Kalaichelvi, Crl.

O.P. Nos.36039/2007 and 777/20 08, decided on 6.2.2012.

4. Upon consideration of the impugned order and the contentions raised in the plaint filed by the respondent, I find that there is great substance in the argument of learned counsel for the applicants and no merit in the submissions made on behalf of respondent.

5. It is seen from the body of the complaint that the respondent has admitted the fact that all applicants, who are the proposed accused, are residing at places falling outside the territorial jurisdiction of the Court of Judicial Magistrate, Akola. Therefore, mandate of Section 202 of the Code of Criminal Procedure would require the learned Magistrate to postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or some other fit person in order to decide as to whether or not there is sufficient ground for proceeding further. Such postponement of issue of process in a case where the accused is residing beyond the territorial jurisdiction of the Court of Judicial Magistrate has been made mandatory under the newly amended Section 202 of the Code of Criminal Procedure, which has been ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 5/10 inserted in the Code of Criminal Procedure by Act 25 of 2005 with effect from 23.6.2006. It is seen from the impugned order that this requirement has not been followed by the learned Magistrate.

6. In the case of Udai Shankar Awasthi (supra), the Hon'ble Apex Court has held that it is obligatory for the Magistrate to enquire into the case himself or direct investigation to be made by a Police Officer or some other fit person when the accused resides at a place beyond territorial jurisdiction of the concerned Magistrate. The relevant observations of the Hon'ble Apex Court appearing in paragraph 26 of the Judgment are reproduced thus :

"While deciding the case in Gokak Patel Volkart Ltd., this Court placed reliance upon its earlier judgment in State of Bihar v. Deokaran Nenshi, wherein the Court while dealing with the case of continuance of an offence has held as under :

5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-

compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."

::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 6/10

7. Before the judgment in the case of Udai Shankar Awasthi (supra) was rendered, Hon'ble Apex Court in the case of National Bank of Oman (supra) had propounded the same law. In that case, Aurangabad Bench of this Court had taken a view that since the accused was residing in an area falling beyond the jurisdiction of the Chief Judicial Magistrate, Ahmednagar, it was necessary for the learned Magistrate to carry out an enquiry or order investigation as contemplated under Section 202 of the Criminal Procedure Code before issuing the process. The view so taken by this Court was found to be correct by the Hon'ble Supreme Court, when it observed in paragraph 8 that it was incumbent upon the learned Magistrate to carry out an enquiry or order investigation as contemplated under Section 202 of the Criminal Procedure Code before issuing the process. The Hon'ble Apex Court also delineated the scope of enquiry under Section 202 of the Criminal Procedure Code by observing that it is limited to the ascertainment of truth or otherwise of the allegations made in the complaint. The observations of the Hon'ble Supreme Court made in this regard appear in paragraphs 8 and 9 of the Judgment and they are reproduced as below :

" 8. We find no error in the view taken by the High Court that the CJM Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 CrPC before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 7/10 fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 CrPC before issuing the process.

9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint.

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made put; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."

8. So, it is clear that the newly amended Section 202 of Criminal Procedure Code makes it obligatory for the Criminal Court empowered to take cognizance of the complaint to postpone the issue of process in a case where the accused resides at a place falling beyond the territorial jurisdiction of that Court to order an enquiry or direct an investigation as contemplated in the said Section. The Hon'ble Apex Court in the case of National Bank of Oman (supra) has also directed (paragraph 12) that the High Court, instead of quashing the complaint in ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 8/10 such a case, should remit the matter to the concerned Magistrate for passing an order afresh in accordance with law. It would thus follow that with such a direction, it would be necessary for this Court to quash the impugned order and remand the matter back to the learned Magistrate for its being considered afresh in accordance with law.

9. As regards the cases relied upon by the learned counsel for the respondent, I must say with due respect that the case of Smt. Nagawwa (supra), having been decided before newly amended Section 202 came into being, would have no application to the facts of the present case. About the second case of Appaiyam and another (supra), I find that the facts of that case are different in the sense that those facts disclosed that the complaint had been prepared with a malafide intention and that sufficient grounds were not made out for proceeding against the applicants and, therefore, the High Court thought it fit to reject the contention of the applicants that the order of dismissal of the complaint was illegal and improper. In the instant case, the learned Magistrate has chosen to proceed further in the matter without following the mandate of Section 202 of the Criminal Procedure Code, which was not an issue involved in the said case of Appaiyam and another (supra). Therefore, even that case would not be of any assistance to the respondent herein.

10. It is also the contention of the learned counsel for the applicant that Akola Court does not have any territorial jurisdiction in ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 9/10 this case to which, the answer has been provided by the learned counsel for the respondent as lying in Section 182(2) of the Code of Criminal Procedure. I do not think it necessary to decide this point as, for the reasons stated earlier, I have already found that this is a fit case for being remanded to the Court of Judicial Magistrate, First Class for considering the matter afresh in accordance with law. So, this point would also have to be kept open for deciding it appropriately.

11. In the circumstances, I find that this application deserves to be allowed and it is allowed accordingly.

12. The impugned order dated 12.1.2015, passed by the 5th Judicial Magistrate, First Class, Akola, is quashed and set aside.

13. The matter is remanded back to the learned 5 th Judicial Magistrate, First Class, Akola for considering it afresh in accordance with law, without being influened in any manner by the observations made in this judgment.

JUDGE okMksns ::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 ::: J-apl257.16.odt 10/10 CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."

Uploaded by : D.W. Wadode, P.A. Uploaded on : 25.7.2016.

::: Uploaded on - 25/07/2016 ::: Downloaded on - 26/07/2016 00:40:52 :::

Unlock Advanced Research with PRISMAI

Bombay High Court