Mandatory nature of Section 202 of the Criminal Procedure Code in postponing the issue of process when the accused resides beyond the court's territorial jurisdiction.

S.B. Shukre, J.

1. Admit. Heard finally by consent.

2. It is the contention of the learned counsel for the applicants that while issuing process, by the order passed on 12th January, 2015, the learned 5th Judicial Magistrate, First Class, Akola has not followed the mandate of Section 202 of the Criminal Procedure Code, which has been newly amended by the Amendment Act, 2005 and, therefore, the order is vitiated. He also submits that when it is an admitted fact that all the applicants, who are the proposed accused persons are not the residents of the place within the territorial jurisdiction of Akola Court, this very fact required the learned Magistrate, as per Section 202 Criminal Procedure Code, to postpone the issuance of process and make an enquiry either by himself or investigation through a Police Officer in order to find out as to whether or not there is sufficient material for proceeding further in the matter. Since this has not been done by the learned Magistrate, the impugned order cannot be sustained in law. In support, he places his reliance upon the cases of National Bank of Oman v. Barakara Abdul Aziz and another, reported in (2013) 2 SCC 488 and Udai Shankar Awasthi v. State of Uttar Pradesh and another, reported in (2013) 2 SCC 435. He also submits that the Akola Court does not have territorial jurisdiction as the offence was not committed within its territorial limit and the applicants are also not residents of any place falling within territorial limit of Akola Court.

3. Learned counsel for the respondent submits that the impugned order is legal and correct and as it has been judicially passed. It is not open for this Court to substitute its view for the view taken by the Judicial Magistrate. He also submits that there are sufficient grounds for proceeding further in the matter and issuing process under Section 204 of the Criminal Procedure Code. As regards the inquiry to be made under Section 202 of the Criminal Procedure Code, learned counsel submits that same has been made by the learned Magistrate. In support, he places his reliance upon the case of Smt. Nagawwa v. Veeranna Shivallngappa Konjalgi, Judgment passed by the Hon'ble Supreme Court of India on 23.4.1976, and the judgment of the Madras High Court in the case of Appaiyam and another v. R. Kalaichelvi, Crl. O.P. Nos. 36039/2007 and 777/2008, decided on 6.2.2012.

4. Upon consideration of the impugned order and the contentions raised in the plaint filed by the respondent, I find that there is great substance in the argument of learned counsel for the applicants and no merit in the submissions made on behalf of respondent.

5. It is seen from the body of the complaint that the respondent has admitted the fact that all applicants, who are the proposed accused, are residing at places falling outside the territorial jurisdiction of the Court of Judicial Magistrate, Akola. Therefore, mandate of Section 202 of the Code of Criminal Procedure would require the learned Magistrate to postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or some other fit person in order to decide as to whether or not there is sufficient ground for proceeding further. Such postponement of issue of process in a case where the accused is residing beyond the territorial jurisdiction of the Court of Judicial Magistrate has been made mandatory under the newly amended Section 202 of the Code of Criminal Procedure, which has been inserted in the Code of Criminal Procedure by Act 25 of 2005 with effect from 23.6.2006. It is seen from the impugned order that this requirement has not been followed by the learned Magistrate.

6. In the case of Udai Shankar Awasthi (supra), the Hon'ble Apex Court has held that it is obligatory for the Magistrate to enquire into the case himself or direct investigation to be made by a Police Officer or some other fit person when the accused resides at a place beyond territorial juri