Bombay High Court
Gayasoddin S/O. Saheblal Sayyad And ... vs The State Of Maharashtra And Anr on 29 July, 2019
Author: V.L. Achliya
Bench: V.L. Achliya
Cr.Appln.1403/19 & another
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
7 CRIMINAL APPLICATION NO.1403 OF 2019
1. Gayasoddin s/o Saheblal Sayyad,
Age : 50 years, Occ: Agri.
R/o.: As above
2. Pasha s/o Saheblal Sayyad,
Age : 47 years, Occu: Agri
R/o: As above
At present R/o. Chandan Nagar,
Pune -14
3. Bibi w/o Hasan Shaikh,
Age : 60 years, Occ.: Household,
R/o; Ranjani,
Tq. Georai Dist. Beed
4. Hasan s/o Katthumiya Shaikh,
Age : 62 years, Occ.: Household,
R/o. As above
5. Rajiya w/o Munsif Baig,
Age : 45 years, Occ.: Household,
R/o.: Telgaon Naka Beed,
Tq. & Dist Beed .. APPLICANTS
VERSUS
1. The State of Maharashtra,
Through Police Station Officer,
Bidkin Police Stationn,
Tq. Paithan, Dist. Aurangabad
2. Imran s/o Habiboddin Shaikh,
Age : 32 years, Occ: Labour,
R/o : Lohagaon,
Tq. Paithan Dist. Aurangabad .. RESPONDENTS
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WITH
8 CRIMINAL APPLICATION NO.1404 OF 2019
1. Sharif s/o Saheblal Sayyad,
age : 60 years, Occu: Agri.,
R/o.: Lukhamasla,
Rq. Georai Dist. Beed
2. Shakila w/o Pasha Sayyad,
Age : 45 years, Occ.: Household,
R/o; As above
3. Gayasoddin s/o Saheblal Sayyad,
Age : 50 years, Occ: Agri.
R/o.: As above
4. Pasha s/o Saheblal Sayyad,
Age : 47 years, Occu: Agri
R/o: As above
At present R/o. Chandan Nagar,
Pune -14
5. Samreen d/o Gayasoddin Sayyad,
Age : 18 years, Occ.: Education,
R/o; Lukhamasla,
Tq. Georai Dist. Beed .. APPLICANTS
VERSUS
1. The State of Maharashtra,
Through Police Station Officer,
Bidkin Police Stationn,
Tq. Paithan, Dist. Aurangabad
2. Habiboddin Abdul Samad Shaikh,
Age : 58 years, Occ: Agri,
R/o : Lohagaon,
Tq. Paithan Dist. Aurangabad .. RESPONDENTS
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Advocate for applicants: Shri Bobade Yogesh K.
APP for respondent no.1: Shri K.D. Mundhe
Advocate for respondent no.2: Shri Suvidh S. Kulkarni
CORAM: V.L. ACHLIYA, J.
DATE: 29.07.2019 PER COURT : 1] Heard learned counsel for the parties. 2] Rule. Rule made returnable forthwith. By consent, both the applications are taken for final disposal. 3] The applicants herein have filed these
applications challenging the orders dated 6.3.2019 and 2.3.2019 passed in SCC No.149/2019 and SCC No.61/2019 respectively by learned Judicial Magistrate, First Class, Paithan (Court No.2) Dist.Aurangabad. By the impugned orders, the learned Magistrate has passed the orders to issue process u/s 323, 504 and 506 of the Indian Penal Code as against the applicants - accused. 4] Although the impugned orders are challenged on various grounds, the learned counsel for the applicants restricted his arguments to challenge the legality and correctness of the orders on the ground of not following ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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the procedure as prescribed u/s 202 of the Code of Criminal Procedure before passing the impugned orders. By referring the decision in the case of Birla Corporation Limited v. Adventz Investments and Holdings Limited & others (AIR 2019 SC 2390), the learned counsel submits that the legal position is quite settled that the conduct of enquiry as contemplated u/s 202 of the Cr.P.C. is mandatory before issuing process against the accused residing beyond the territorial jurisdiction of the Court concerned. It is submitted that the impugned orders are passed without following the mandatory procedure prescribed u/s 202 of the Code of Criminal Procedure and, therefore, the orders are liable to be set aside. 5] On the other hand, the learned counsel for the respondent no.2 submits that the impugned orders have been passed after due consideration of the allegations made in the complaint and the evidence produced supporting the allegations made in the complaint. It is further submitted that in case this Court forms the opinion that the enquiry ought to have been conducted as contemplated u/s 202 of the Cr.P.C. before passing the impugned orders, in that case the matter be remanded to ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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trial Court for fresh consideration. In support of the submission, the learned counsel has referred and relied upon the decision of the Apex Court in the case of National Bank of Oman v. Barakara Abdul Aziz & another [(2013) 2 SCC 488].
6] In view of the limited controversy involved in the applications, it is not necessary to discuss the facts in detail. It is not in dispute that the applicants - accused against whom the process has been issued are residing beyond the territorial jurisdiction of the Court, which has passed the impugned orders. So also no enquiry as contemplated u/s 202 of the Cr.P.C. was conducted before passing the impugned orders. 7] The impugned orders dated 6.3.2019 and 2.3.2019 passed in SCC No.149/2019 and SCC No.61/2019 respectively read as under:-
"Heard V.G. Mule advocate for the complainant. Read the complaint, verification of the complainant. I have also gone through the documents including complaint to Superintendent of Police, Aurangabad filed with Bidkin Police Station. The offence punishable under Sections 323, 504, 506, r/w.
Sec.34 of the Indian Penal Code has been
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specifically made out in the complaint. Hence, issue process for the offence punishable under Sections 323, 504, 506 r/w. Sec. 34 of the Indian Penal Code, 1860 against accused No.1 to 5 on P.F."
The impugned orders clearly spell out that the process has been issued only on the basis of allegations made in the respective complaints and the verification statement of the complainant recorded by the learned Magistrate. No enquiry as contemplated u/s 202 of the Cr.P.C. has been conducted before passing the impugned orders. In the case of Birla Corporation Limited v. Adventz Investments and Holdings Limited & others (supra), the Apex Court has held that enquiry as contemplated u/s 202 of the Cr.P.C. must be conducted before passing the order of issuance of process wherein the accused are residing outside the territorial jurisdiction of the Court dealing with the complaint and taking cognizance of the matter. In paragraph nos.31 to 34, the Court has observed as under:-
"31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.
32. By Cr.P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words "...and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction..." were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:-
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.
33. Considering the scope of amendment to Section 202 Cr.P.C., in Vijay Dhanuka and Others v. Najima Mamtaj and Others (2014) 14 SCC 638, it was held as under:-
"12. ....The use of the expression "shall"
prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive.
Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate." Since the amendment is aimed to prevent persons residing outside the jurisdiction of the court from being harassed, it was reiterated that holding of enquiry is mandatory. The purpose or objective behind the amendment was also considered by this Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528 and National Bank of Oman v. Barakara Abdul Aziz and Another (2013) 2 SCC 488."
34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under:-
"22. ....the Code of Criminal Procedure ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C., the High Court under Section 482 Cr.PC. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self- respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
7] Thus, in the light of the law laid down by the Apex Court in the case of Birla Corporation Limited v. Adventz Investments and Holdings Limited & others (supra), the impugned orders are liable to be set aside. Since the orders were passed without conduct of enquiry, it is necessary that the impugned orders be quashed and set aside and the case be remanded back to the trial Court to pass fresh order after conducting enquiry as contemplated u/s 202(2) of the Cr.P.C. 8] In the result, the applications are allowed in terms of prayer clause [C]. The impugned orders dated 6.3.2019 and 2.3.2019 passed in SCC No.149/2019 and SCC No.61/2019 respectively by learned J.M.F.C., Paithan Dist.Aurangabad are quashed and set aside. The case is remanded back to the learned Magistrate to decide the cases afresh after conducting enquiry as contemplated u/s 202 of the Cr.P.C. and then to pass appropriate order as ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 ::: Cr.Appln.1403/19 & another
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deemed fit and proper in the facts and circumstances of the case.
9] The applications are disposed of in above terms and Rule is made absolute accordingly.
(V.L. ACHLIYA, J.) ndk/c297199.doc ::: Uploaded on - 31/07/2019 ::: Downloaded on - 31/07/2019 22:48:00 :::