The issue regarding the interpretation of Section 202(1) of the Code of Criminal Procedure (Cr.P.C.), which mandates an inquiry before the issuance of process by the Magistrate when the accused resides outside the jurisdiction of the Court, has long been a topic of legal debate. Specifically, the question of whether the provision is mandatory or discretionary led to conflicting opinions among different judges. However, in light of recent developments and judicial pronouncements of Bansilal S. Kabra v/s Global Trade Finance Limited & Another, the matter has now been put to rest.
The Origin of the Disagreement:
The disagreement on the mandatory or discretionary nature of Section 202(1) arose in 2010, when Justice V.M. Kanade (as he then was) and Justice S.C. Dharmadhikari (as he then was) passed divergent orders in different criminal applications. Justice Kanade, in his order dated 9 July 2010, expressed the view that the amendment was directory, meaning it was not mandatory for the Magistrate to conduct an inquiry before issuing process. However, Justice Dharmadhikari, in a different application, held that the provision was mandatory, requiring a compulsory inquiry.
In response to this split in opinion, a larger Bench was constituted. This was further deferred due to the pendency of an appeal before the Supreme Court, which was eventually decided in September 2021.
Supreme Court’s Role in Clarifying the Law:
The issue gained prominence when the Supreme Court, in its suo motu writ petition (CRL) No. 2 of 2020, examined the interpretation of Section 202 in relation to Section 138 of the Negotiable Instruments Act, 1881 (NI Act). In its decision dated 16 April 2021, the Court held that an inquiry under Section 202 of the Cr.P.C. is indeed mandatory, especially when the accused resides outside the jurisdiction of the Court. This was in line with earlier rulings such as Vijay Dhanuka, Abhijit Pawar, and Birla Corporation, which affirmed that the inquiry could not be dispensed with.
The Court noted that this amendment was part of a broader effort to expedite trials under the NI Act and reduce delays in legal proceedings. The aim was to ensure that no accused person is harassed without sufficient grounds for issuing process. The amicus curiae (legal expert appointed by the Court) echoed this view, recommending that the Magistrate must be satisfied that sufficient grounds exist to proceed against the accused after conducting the mandatory inquiry.
Further Clarifications and Impact on Section 202:
While Section 202(1) of the Cr.P.C. mandates an inquiry by the Magistrate before issuing process, Section 202(2) deals with the requirement of examining witnesses under oath during such an inquiry. The Supreme Court clarified that under Section 145 of the NI Act, evidence in such cases could be presented in the form of affidavits, and the Magistrate need not insist on witness examination under oath. This procedural flexibility was introduced to speed up the process, particularly in cases related to dishonored cheques.
The Court further noted that Section 202 aimed to prevent unnecessary harassment by ensuring that the complaint is substantiated before issuing summons to the accused. In cases where the accused resides outside the jurisdiction, the inquiry must be conducted to ascertain whether there is sufficient material to support the complaint.
Implementing the Decision:
The Bombay High Court, in light of the Apex Court's decision, issued a circular on 27 January 2022, directing Magistrates to adhere to the mandatory nature of Section 202. The circular specified that when the accused resides outside the jurisdiction, an inquiry should be conducted to determine whether sufficient grounds exist to proceed against the accused. Furthermore, evidence on behalf of the complainant can be taken through affidavits, and the Magistrate may also examine documents without examining witnesses, if appropriate.
Conclusion:
The legal question regarding whether the inquiry under Section 202 of the Cr.P.C. is mandatory or discretionary has now been conclusively answered by the Supreme Court. The inquiry is mandatory, especially when the accused resides outside the jurisdiction of the Magistrate, to ensure that the complainant's allegations are sufficiently supported by evidence before process is issued.
This clarification aligns with the broader objective of criminal law: to protect individuals from frivolous or vexatious litigation while ensuring that justice is served swiftly and fairly. The duty of the Magistrate to scrutinize complaints and ensure there is adequate cause for issuing process is essential for maintaining the integrity of the justice system.
Section 202., Code of Criminal Procedure - 1973
Code of Criminal Procedure, 1973
Section 138, Negotiable Instruments Act - 1881
Section 145, Negotiable Instruments Act - 1881
Negotiable Instruments Act, 1881
