Is inquiry mandatory under S. 202 Cr.P.C. before issuing process for outside...

Is inquiry mandatory under S. 202 Cr.P.C. before issuing process for outside accused?

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Question: Whether inquiry or investigation is mandatory under S. 202 Cr.P.C. before the Magistrate issues process to accused persons who are residing beyond the territorial jurisdiction of the Magistrate?

Answer: The answer is “yes”. Where a Magistrate receives a complaint of an offence of which he is authorised to take cognizance and the accused person is residing at a place beyond the territorial jurisdiction of the Magistrate, it is mandatory under Section 202(1) of the Criminal Procedure for the Magistrate to first conduct an inquiry himself or direct an investigation to be made by a police officer or other person, before the issue of process against the accused, for the purpose of deciding whether or not there is sufficient ground for proceeding.

Section 202(1) of the Criminal Procedure Code is reproduced below:

202. Postponement of issue of process.— (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a 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 either 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:

Provided that no such direction for investigation shall be made,—

(a) where it appears to the Magistrate that the offence 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.”

It may be pointed out that the words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted in the above section by way of amendment by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 23 June 2006. The note for the above amendment in the Amending Bill read as follows:

“False complaints are filed against persons residing at far off places simply to harass them. In order to see that 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 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 Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, the Supreme Court, while interpreting the above legal provision, held that:

“Section 202 of the Code, inter alia, contemplates postponement of the issue of the process “in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.

The Supreme Court referred to the above note for amendment in Section 202(1) Cr.P.C., observing that the aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them, and then the Supreme Court held as under:

“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 investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.”

In the recent case of Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528, the Supreme Court similarly held that such an inquiry or investigation was mandatory when the accused person resides outside the jurisdiction of the Magistrate, by observing as under:

“Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 CrPC was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22-6-2006 by adding the words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction”. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment.”

On the issue of the scope of such inquiry, it may be pointed out that as mentioned in Section 202(1) Cr.P.C. itself, such inquiry is to be conducted for the purpose of deciding whether or not there is sufficient ground for proceeding. Sub-section (2) of Section 202 further enables the Magistrate to take evidence of witnesses on oath during such inquiry, and where the offence is triable by Sessions Court, it is mandatory for the Magistrate to “call upon the complainant to produce all his witnesses and examine them on oath” during such inquiry.

In Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, after referring to the definition of the word “inquiry” in Section 2(g) of the Cr.P.C., the Supreme Court held that:

“It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.”

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