The amendment to Section 202 Cr.P.C made the enquiry mandatory for accused persons residing outside the jurisdiction, but non-compliance does not vitiate the cognizance taken or the process issued.

What is the import and consequence of the amendment to Section 202 Cr.P.C by Act 25 of 2005

w.e.f 23.06.06 by which the words "and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were introduced? Is the stipulation couched in the above language directory or mandatory? Does that stipulation apply at all to prosecutions under Section 138 of the Negotiable Instruments Act? If the sworn statement of all necessary witnesses cited by the complainant is recorded under Section 200 Cr.P.C and the materials are sufficient to induce the requisite satisfaction in the mind of the learned Magistrate that there is sufficient ground for proceeding, should the learned Magistrate still proceed to the stage of Section 202 Cr.P.C and conduct a further enquiry? What would be the content and scope of such an extended enquiry in such circumstances? When does the enquiry under Section 200 Cr.P.C end and the enquiry under Section 202 Cr.P.C commence? Is the boundary line between the enquiry under Section 200 Cr.P.C and 202 Cr.P.C so firm, definite, stable and specific? These questions arise for consideration in these cases.

2. These questions have been raised in several similar matters. Counsel were requested to advance detailed arguments. All counsel who wanted to be heard on the question were given opportunity to advance their arguments. Advocate D. Koshore was requested to assist the Court as Amicus Curiae also. By this common order, I propose to dispose of only Crl.M.C.No.292 of 2008 and Crl.M.C No.2247 of 2008.

3. To the relevant and vital facts first. Crl.M.C No.292 of 2008 is filed by the accused who faces indictment in a prosecution under Section 138 of the N.I Act. The short grievance raised by him is that no enquiry under Section 202 Cr.P.C as amended has been conducted by the learned Magistrate before process was issued to him under Section 204 Cr.P.C. The learned Magistrate was satisfied by recording the statement of the complainant under Section 200 Cr.P.C. The same was received by an affidavit filed under Section 145 of the N.I Act. According to the petitioner, cognizance could not, at any rate, have been taken, after the amendment came into force, against a person-resident outside the jurisdiction of the court without and before conducting an enquiry under Section 202 Cr.P.C. He prays that the proceedings against him may hence be quashed.

4. Crl.M.C No.2247 of 2008 is filed by the complainant in a prosecution under Section 138 of the N.I Act. The grievance of the complainant is that though all materials have been placed before the learned Magistrate to induce the requisite satisfaction under Section 203/204 Cr.P.C, unnecessarily there has been a direction to proceed with the enquiry under Section 202 Cr.P.C. Loan documents relating to the transaction in question were directed to be produced. The learned counsel for the petitioner contends that a ritualistic further enquiry under Section 202 Cr.P.C is not necessary or warranted at all notwithstanding the amendment to Section 202 Cr.P.C. He challenges the impugned

order which reads as follows:

"4.2008 - Loan documents not produced. For examination of complainant 6.08. Sd/- Magistrate."

It is prayed that the said order may be set aside and the learned Magistrate may be directed to take a decision u/s 203/204 Cr.P.C on the basis of the materials presently available.

5. To the statutory provisions next, cognizance can be taken by a criminal court under Section 190 Cr.P.C and 190(1) (a) Cr.P.C clearly shows that such cognizance can inter alia be taken upon receiving a complaint of facts which constitute such offence. I extract Section 190 Cr.P.C "Section 190 Cr.P.C.: Cognizance of offences by Magistrates:

.(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specifically empowered in this behalf under sub-section (2), may take cognizance of any offen