LexVIJAY DHANUKA ETC. versus NAJIMA MAMTAJ ETC.
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[2014) 4 S.C.R. 171 VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC. (Criminal Appeal Nos. 678-681 of 2014) MARCH 27, 2014 [CHANDRAMAULI KR. PRASAD AND PINAKI CHANDRA GHOSE, JJ.] CODE OF CRIMINAL PROCEDURE, 1973: 171 A B c s.202 rlw.s.2(g) and s. 200 - "Inquiry" in a case where accused is residing outside territorial jurisdiction of Judicial Magistrate - Nature and purpose of -Held: In such a case, before issuing summons to accused, inquiry uls 202 is mandatory - In the instant case, Magistrate examined 0 complainant on solemn affirmation and two witnesses and only thereafter directed issuance of process -This exercise by Magistrate for purpose of deciding whether or not there is sufficient ground for proceeding against accused is an inquiry u/s 202 - There is no error in impugned order of High Court E rejecting the petitions of accused challenging the order of Judicial Magistrate directing issuance of process. WORDS AND PHRASES: Word 'shall' as occurring in s. 202 Cr. P. C. - Connotation F of. In a complaint filed regarding commission of offences punishable u/ss. 323,380 and 506 read with s.34 IPC, the Additional Chief Judicial Magistrate, after taking cognizance, transferred the complaint to the Court of G Judicial Magistrate, who examined the complainant and her two witnesses u/s 200 Cr.P.C. On a subsequent date, the Judicial Magistrate ordered issuance of summons 171 H 172 SUPREME COURT REPORTS [2014) 4 S.C.R. A against the appellants for the offences stated In the complaint. The appellants challenged the order before the High Court u/s 482 Cr.P.C. contending that the accused persons being residents of an area beyond the territorial jurisdiction of the Judicial Magistrate, an inquiry within the B meaning of u/s 202 Cr.P.C. was necessary. The High Court rejected the petitions. Dismissing the appeals, the Court HELD: 1.1 In the instant case, on receipt of the C complaint, the Additional Chief judicial Magistrate in exercise of the power u/s 192 of the Code of Criminal Procedure, 1973, after taking cognizance of the offence, made over the case for inquiry and disposal to the transferee Magistrate. Therefore, transfer of the case to D transferee Magistrate for inquiry and disposal is perfectly in tune with the provisions of the Code. [para 8] [177-A-C] 1.2 Section 202, Cr.P.C, inter alia, contemplates postponement of the issue of the process by the Magistrate "in a case where the accused is residing at a E 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. The words "and shall, in a case where the accused is residing F at a place beyond the area in which he exercises his jurisdiction" was inserted by s.19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The intention of the legislature is aimed to prevent innocent persons from harassment by G unscrupulous persons from false complaints. Therefore, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, the inquiry or the investigation, as the case may be, is mandatory before summons are issued against the H accused living beyond the territorial jurisdiction of the VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC. 173 Magistrate. [para 11 -12) [179-H; 180-A-C, H; 181-A~B] A Udai Shankar Awasthi v. State of Uttar Pradesh 2013 (3) SCR 935 = (2013) 2 sec 435 - relied on. 1.3 The word "inquiry" has been defined u/s 2(g}, Cr.P.C. It is evident from the provision, that every inquiry 8 other than a trial conducted by the Magistrate or court is an inquiry. No specific mode or manner of inquiry is provided u/s 202 of the Code. In the inquiry envisaged u/ s 202, Cr.P.C. the witnesses are examined; whereas u/s 200, Cr.P.C. examination of the complainant only is C 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 u/s 202. (para 13-14] (181-H; 182- D B·D] Case Law Reference: 2013 (3) SCR 935 relied on para 12 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 678-681 of 201'4. E From the Judgment and Order dated 19.02.2013 of the High Court
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