Orissa High Court
Sankarsan Behera vs Bipini Bihari Panda. .... Opposite ... on 9 July, 2021
Author: S. Pujahari
Bench: S. Pujahari
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3347 of 2018
Sankarsan Behera. .... Petitioner
Mr. Manoranjan Acharya, Advocate
-versus-
Bipini Bihari Panda. .... Opposite Party
Mr. Baibaswata Panigrahi, Advocate
CORAM:
JUSTICE S. PUJAHARI
ORDER
Order 09.07.2021 No. 08. 1. This is an application filed under Section 482 of
Cr.P.C. for quashment of the order dated 09.03.2018 passed by the learned J.M.F.C., Aska in I.C.C. No.5 of 2018 taking cognizance of offence under Section 138 of the Negotiable Instruments Act (for short the "N.I. Act"), so also the entire proceeding initiated against the petitioner.
2. Heard the respective learned counsels for both the sides through video conferencing mode and perused the relevant papers on record.
Page 1 of 4
// 2 //
3. The petitioner assails the order of cognizance and the proceeding of the case against him mainly on the ground that the same is bad in law, inasmuch as no enquiry contemplated under Section 202 of Cr.P.C. has been conducted by the learned J.M.F.C., Aska, although the accused-petitioner resides beyond the area of his jurisdiction.
4. During the course of hearing, the learned counsel for the petitioner submitted that the enquiry under Section 202 of Cr.P.C. is mandatory, and the same having not been conducted, the impugned order is liable to be quashed, so also, consequent proceeding.
It is, however, the submission of the learned counsel for the opposite party-complainant that since the provisions of the N.I. Act have overriding effect, non- adherence to the provision of Section 202 of Cr.P.C. by the learned Magistrate is of no consequence.
5. Admittedly, the accused-petitioner is residing at Village- Podingi under Hinjili Police Station which is beyond the area of jurisdiction of the learned J.M.F.C., Page 2 of 4 // 3 // Aska, and in such a case, in view of the incorporation made in Section 202 of Cr.P.C. by way of amendment, the learned J.M.F.C., Aska ought to have conducted an enquiry before issuing process against the accused- petitioner. Needless to mention that, as per the provision of Section 145 of the N.I. Act, the required evidence could have been given by the complainant on affidavit for the purpose of enquiry under Section 202 of Cr.P.C. In that view of the provisions of law, the learned J.M.F.C., Aska could not have proceeded with the case without conducting an enquiry under Section 202(1) of Cr.P.C. Reliance in this regard can be placed on a Constitution Bench decision of the Apex Court rendered in Suo-Motu Writ Petition (Crl.) No.2 of 2020.
6. For the reason aforesaid, I allow this CRLMC and remit back the matter to the Court concerned with a direction to the complainant-opposite party to file evidence on affidavit for the purpose of enquiry under Section 202 of Cr.P.C. adhering to the law laid down by a Constitution Bench of the Apex Court rendered in Suo-Motu Writ Petition (Crl.) No.2 of 2020 and then Page 3 of 4 // 4 // proceed in accordance with the law. Since the matter is being dragged since long, it is hoped that the Magistrate concerned shall conclude the proceeding within six months of receipt of copy of this order. The parties are directed to cooperate with the same.
As the restrictions due to resurgence of COVID- 19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
( S.Pujahari ) Judge MRS Page 4 of 4