ABHIJIT PAWAR versus HEMANT MADHUKAR NIMBALKAR & ANR.

Citation: [2016] 9 S.C.R. 475 · Decided: 14-12-2016 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2016] 9 S.C.R. 475 
ABHIJIT PAWAR 
v. 
HEMANT MADHUKAR NIMBALKAR & ANR. 
(Criminal Appeal No. 1225 of2016) 
DECEMBER 14, 2016 
[A.K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.] 
Code of Criminal Procedure, 1973: s.202 - Persons residing 
A 
B 
at a place beyond the area in which the Magistrate exercises his 
iurisdiction - Issuance of summons - Held: The procedure stipulated 
C 
in s.202 is mandatory which imposes an obligation on the Magistrate 
to ensure that before summoning an accused, who resides beyond 
his jurisdiction, the Magistrate shall make necessary inquiries into 
the case himself or direct investigation - Jn the instant case, 
complainant was aggrieved with the news published in a newspaper 
and filed complaint against the accused persons who were 
D 
described as Printer and Publisher, Managing Director, Chairman 
of the newspaper - A perusal of summoning order showed that no 
inquiry was conducted as contemplated in s.202 - Magistrate did 
not look into the matter in terms of the provisions of s. 7 of the Press 
Act and applying his mind whether there is any declaration qua 
E 
accused persons under the said Act and, if not, on what basis they 
were to be proceeded with along with the editors - Magistrate 
directed to take up the matter afresh - Press and Registration of 
Books Act, 1861. 
Allowing the appeals, the Court 
HELD:l. Section 202 of the Cr.P.C. was amended in the 
year by the Code of Criminal Procedure (Amendment) Act, 2005, 
with effect from 22nd June, 2006 by adding the words 'and shall, 
F 
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 G 
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, 
475 
H 
476 
SUPREME COURT REPORTS 
[2016] 9 S.C.R. 
A so that false compiaints are filtered and rejected. The requirement 
of conducting enquiry or directing investigation before issuing 
process is, therefore, not an empty formality.[Paras 22, 24][489-
B-C; 492-C] 
Vijay Dhanuka v. Najima Mamtaj 2014 (4) SCR 171 : 
B 
(2014) 14 SCC 638; Mehmood Ul Rehman v. Khazir 
Mohammad Tunda (2016) 1 SCC (Cri) 124 - relied on. 
2. In the instant case, the summoning order did not reflected 
any such inquiry. No doubt, the order mentioned that the 
Magistrate had passed the same after reading the complaint, 
c verification statement of complainant and after perusing the 
copies of documents filed on record, however, there is no enquiry 
of the nature enumerated in Section 202, Cr.P.C. The Magistrate 
did not look into the matter keeping in view the provisions of 
Section 7 of the Press Act and applying his mind whether there is 
D 
E 
any declaration qua these two persons under the said Act and, if 
not, on what basis they are to be proceeded with along with the 
editors. Application of mind on this aspect was necessary. It is 
not suggested that these two accused persons cannot be 
proceeded with at all only because of absence of their names in 
the declaration under Press Act. What is emphasised is that there 
is no presumption against these persons under Section 7 of the 
Press Act and they being outside the territorial jurisdiction of 
the concerned Magistrate, the Magistrate was required to apply 
his mind on these aspects while passing summoning orders qua 
A-1 and A-2. [Paras 25, 26, 27][492-H; 493-A, C-E) 
F 
National Textile Corpn. Ltd. v. Nareshkumar Badrikumar 
Jagad 2012 (14) SCR 472 : (2011) 12 SCC 695 -
relied on. 
3. No doubt, the argument predicated on Section 202 of 
the Cr.P.C. was raised for the first time by A-1 before the High 
G Court. Notwithstanding the same, being a pure legal issue which 
could be tested on the basis of admitted facts on record, the High 
Court could have considered this argument on merits. It is a 
settled proposition of law that a pure legal issue can be raised at 
any stage of proceedings, more so, when it goes to the jurisdiction 
of the matter. For the said reasons, the notice in respect of A-1 
H 
ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR & 
477 
ANR. 
is quashed and the Magistrate is directed to take up the matter A 
afresh qua A-1 and pass necessary orders. Insofar as appeal filed 
by the complainant discharging A-2 is con

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