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Section 202 of the Cr.P.C.

Section 202 of the Cr.P.C. and as to whether the such requirement of enquiry or investigation is attractable

INtroduction - What is Section 202 of the Cr. P.C?

202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an of ence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police of icer or by such other person as he thinks fit, for the purpose of deciding whether or not there is suf icient ground for proceeding: Provided that no such direction for investigation shall be made,–
(a) where it appears to the Magistrate that the of ence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the of ence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police of icer, he shall have for that investigation all the powers conferred by this Code on an of icer-in-charge of a police station except the power to arrest without a warrant.

keywords: definition, content

Mere perusal of the above-mentioned provision it is clear that the magistrate who is issuing the process against the accused person, who is living beyond his jurisdiction may harass the accused person and it would be very back-breaking for the accused person to go for the court proceedings. Section 202(1) of the Code of Criminal Procedure, 1973 (hereinafter mentioned Crpc) provides protection for innocent people residing at far-off places from being harassed. Issuance of the process should not be made as an instrument of harassment to the accused person and it should be postponed by the magistrate where the accused person is residing outside the territorial jurisdiction of the Magistrate

In case of Vijay Dhanuka and Others v Najima Mamtaj and Others (2014) 14 SCC 638, the court held that it is mandatory for the Magistrate to conduct an inquiry or direct an investigation before issuing a process where the accused is residing beyond the territorial jurisdiction of the Magistrate.

Section 202(1) of Crpc makes it obligatory upon the Magistrate that before summoning the accused who is residing beyond his jurisdiction, he shall 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.

In the case of Birla Corporation Limited v Adventz Investments and Holding Limited (2019) 16 SCC 610, the court held that the issuance of the process should not be mechanical nor should it be made as an instrument of harassment to the accused. An issuance of process to the accused calling upon them to appear in a criminal case is a serious matter and if there is a lack of material particulars and non-application of mind by the magistrate as to materials cannot be brushed aside on the ground that it is only a procedural irregularity.

In Abhijeet Pawar v Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528, it was seen that, the superior court on being satisfied that if the mandatory requirement of Section 202, crpc were not fulfilled by the magistrate before issuing process, it can direct the magistrate to take up the matter up afresh and pass appropriate orders in compliance with Section 202, crpc.

In Smt. Neeta Sinha v. P.S. Raj Steels Private Ltd.

Facts: Seeking quashing of criminal complaint dated 24.2.2009 (Annexure P10) filed under Section 138 of the Negotiable Instruments Act, 1881.

Observation Para 6: As per the above provisions, the Magistrate shall in the case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused and also inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.

Decision: Accordingly, this petition is partly allowed. The impugned order for summoning the petitioner dated 15.5.2009 (Annexure P11) is set aside and the Magistrate is directed to pass the fresh order in accordance with law after complying with the mandatory provisions of Section 202 Criminal Procedure Code.

APPLICATION OF MIND WHILE SUMMONING THE ACCUSED

  • K.S. Joseph V. Philips Carbon Black Ltd. and another (Supreme Court of India)– Criminal Appeal No.247 of 2016 [Arising out of S.L.P.(Crl.) No.8058 of 2012]. D/d. 11.4.2016.
  • Facts: A. Negotiable Instruments Act, 1881 Section 138 Criminal Procedure Code, 1973 Section 202 Criminal complaint under Section 138 of N.I. Act – Complaint made after a delay of 62 days.

Observation- Para 10.- Learned counsel for the respondent-complainant could not place any material to counter the two submissions noted above. We have already noted earlier that the Order Sheet does not disclose any application of mind either to the issue of delay or to the requirement of Section 202, Cr.P.C. Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay.

Decision: This question of law is therefore left open. But on the ground of non-application of mind to the issue of delay and considering that the High Court has passed a summary order without even noticing the contentions advanced on behalf of the appellant, we set aside the impugned order of the High Court as well as the order of cognizance summoning the accused passed by the learned Magistrate.

  • SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020 – In the recent judgment passed by the Hon’ble Supreme Court, various guidelines have been issued where directions have been issued to the Hon’ble High Court to ensure that Guidelines issued in Para no. 24 Guidelines no. 1 to 8 are complied with by the Subordinate Courts (Magistrate). High Courts are requested to issue practice directions to the Magistrates to record reasons before converting the trial of complaints under Section 138 of the Act from summary trial to summons trial. And further, an inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused when such accused resides beyond the territorial jurisdiction of the court.

Conclusion

A person summoned before the criminal court as an accused is a serious matter as it can affect one’s dignity and reputation in society. There have been many cases where the accused person is falsely implicated. These false allegations are made against a person in order to harass them where they are residing far off places from where the complaint has originally been registered. The magistrate must apply his mind before issuing the process that there are sufficient grounds for proceeding against the accused person. Section 202 of Crpc was amended in the year of 2005 and it inserted the word “shall” which makes it mandatory for the magistrate to conduct inquiry/investigation into the complaint upon which having jurisdiction to adjudicate upon. Moreover, as per the guidelines issued by the Supreme Court of India in case titled “SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020” an inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused when such accused resides beyond the territorial jurisdiction of the court.

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