The main legal point established in the judgment is the mandatory requirement of conducting an inquiry under Section 202 of the Code of Criminal Procedure before issuing process against an accused residing outside the territorial jurisdiction of the court.

JUDGMENT

Ajoy Kumar Mukherjee, J. - The present revisional application has been directed for quashing the impugned proceeding being C. Case No. 3436 of 2018 under Sections 389 of the Indian Penal Code pending in the court of 10th Judicial Magistrate, Alipore, South 24 Parganas.

2. The subject matter under challenge in the present revisional application mainly relates to order dated 13.09.2018 passed in C. Case No. 3436 of 2018 by the learned 10th Judicial Magistrate, Alipore, South 24 Parganas, wherein the learned Magistrate was pleased to issue summon under Section 204 of the Code of Criminal Procedure (in short 'the code') against the petitioner/accused person for the offence committed under Sections 389 of the Indian Penal Code (in short 'IPC').

3. For better understanding regarding the contents of the impugned order, let me reproduce the relevant order passed by the concerned Magistrate.

'Order Dated: 13.09.2018 Today is fixed for S/A.

Complainant is present by filing hazira. The record is taken for S/A.

The complainant has been examined on dock and discharged.

Perused the materials on record carefully and the deposition.

Prima facie it appears that a case under Section 389 of IPC has been well established against the accused persons.

Issue process accordingly.

Fix 04.12.2018 for S/R & Appearance. Requisite at once.

10th Judicial Magistrate, Alipore'

4. Mr. Arnab Sengupta learned counsel for the petitioner argued that issuance of process in the instant case is bad in law as the petitioner is not residing within the territorial jurisdiction of the learned Magistrate, but learned Magistrate without adhering to the mandatory provision under Section 202 of the code had issued process. Non-application of mind before issuing process has been clearly manifested from the aforesaid order.

5. On perusal of the order impugned, it appears that the learned Magistrate examined the complainant only under Section 200 of the code, on solemn affirmation and after considering the complaint as well as the statement made by the complainant on solemn affirmation came to a conclusion that prima facie case having been made out against the petitioner herein under Sections 389 IPC and as such, issued process against the accused person under Sections 389 IPC without adhering to Section 202 of the code , inspite of the fact that the cause title speaks that petitioner is not residing within the territorial jurisdiction of the concerned Magistrate.

6. Mr. Sengugpta argued that the consistent view of the Hon'ble Apex Court is that where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing process. In the present context, learned Magistrate without making inquiry under section 202 of the code had issued summon against the petitioner/accused person and did not ascertain whether there are grounds to proceed or not and as such the entire proceeding is liable to be quashed.

7. It is well settled in catena of decisions that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. (Pepsi Foods Ltd. and another Vs., Special Judicial Magistrate and others, reported in (1998) 5 SCC 749).

8. Apex Court reminded the notes on clauses for the code of criminal procedure (amendment) Act, 2005 in connection with section 202 of the code in National Bank of Oman Vs. Barakara Abdul Aziz and Another reported in (2013) 2 Supreme Court Cases (Cri) 731,wherein it was held by the Hon'ble Apex Court in paragraphs 9 and 10 as follows :

'9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court.

The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in