The main legal point established in the judgment is the imperative nature of the amendment in Section 202 of the Code of Criminal Procedure, emphasizing the duty of the Magistrate to carefully scrutinize the allegations in the complaint and elicit all facts before bringing the accused to book.

JUDGMENT :

1. In light of the cleavage of opinion on the aspect whether the amendment in Section 202, sub clause(1) of the Code of Criminal Procedure, contemplating an inquiry before issuance of process by the Magistrate, where the accused is residing outside the jurisdiction of the Court, is discretionary or mandatory, a larger Bench was constituted by the then, Hon’ble The Chief Justice.

Justice V.M. Kanade, (as His Lordship then was), in his order dated 9/7/2010 passed in Criminal Application No. 1344 of 2010, expressed his view that the amendment is directory and not mandatory, whilst he expressed disagreement with Justice S.C. Dharmadhikari (as his Lordship then was), who in his order passed in Criminal Application No. 2640/2009 was of the view, that the amended provision is mandatory in nature.

2. Reference made to the larger Bench was required to be deferred in the wake of the scenario, that the Appeal (Criminal Appeal No. 276/2013) preferred against the impugned order was pending before the Apex Court and subsequently, in light of the Appeal being decided on 23/9/2021, the matter is once again placed before the larger Bench, which is reconstituted on 31/10/2023.

3. We have heard learned Advocate Shri Arun Mehta along with Advocate Aniket Srivastav for the applicant, Mr. H.S. Venegaonkar, Public Prosecutor for the State and Mr.Yashpal Thakur with Advocate Mukund Pandya for the respondent no.1.

We have also perused the distinct orders passed by the respective Single Judge of this Court, resulting into this reference.

With the passage of the time, since the reference was made, there is further evolution of law on the aspect involved and though there are decisions from this Court as well as the higher Court, which have categorically held that the provision is mandatory in nature, in our opinion, the conundrum has been put to rest by the Constitution Bench of the Apex Court in suo motu Writ Petition (CRL) No.2 of 2020 in Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF THE N.I. Act, 1881, headed by the then Hon’ble The Chief Justice of India on 16/4/2021.

While touching the significant aspects revolving around Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) and on being concerned with large number of pending cases, the cause was taken up, for examining the reasons for the delay in disposal of these cases and one of the facet which Their Lordships deemed appropriate to focus upon, was in regard to “Inquiry u/s.202 of the Code in relation to Section 145 of the Act”.

Referring to the amendment in Section 202 of Code enforced with effect from 23/6/2006 vide Act No.25 of 2005, which made it mandatory for the Magistrate to conduct an inquiry before issuance of the process, in a case where the accused resided beyond the area of the jurisdiction of the Court, the diversion of opinion among the High Courts relating to the applicability of the said provisions to the complaints filed under Section 138 of the Act, was noted.

The amicus curiae advanced his submissions reflecting upon the imperative nature of the amendment and what is recorded in paragraph no.11, of the Constitution Bench decision, deserves a reproduction :-

“11 The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph Vs. Philips Carbon Black Ltd, & Anr, where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici.”

4. Another aspec