IMPORTANT POINT
The inquiry under Section 202 Cr.P.C. is mandatory before issuing summons to an accused residing outside the jurisdiction, as established by the Supreme Court.

JUDGMENT :

1. In all these applications, preferred under Section 482 Cr.P.C., since identical question of law is involved, therefore, with the consent of the learned counsel for the parties, same are being decided by a common judgment.

2. The common question of law which is involved in all these matters, namely, “whether an inquiry under Section 202 Cr.P.C. is followed or not and either are mandatory or directory in nature in view of the judgment rendered by the Constitutional Bench of the Hon’ble Apex Court in “Expeditious Trial of Cases under Section 138 of N.I. Act 1881, i.e., Suo Motu Writ Petition (Criminal) No. 2 of 2020, (2021) 16 SCC 116.”

3. Before giving answer to the question of law as above, in all these cases the proceedings under Section 138 of N.I. Act has been challenged only on the ground that before taking cognizance on the complaint and issuing process and summoning the accused, mandatory inquiry as stipulated under Section 202(1) Cr.P.C., has not been followed which in fact mandates postpone of issuance of process for the accused resides outside the territorial jurisdiction of the Magistrate.

4. The counsel for the respondent has not disputed this fact that the present applicants, against whom the complaint has been filed under Section 138 of the N.I. Act, are residing outside the territorial jurisdiction of the Trial Court which took cognizance on the complaint.

5. Learned counsel for the applicants in answer to the question as above, placed reliance upon the judgment rendered by the Hon’ble Apex Court in Suo Motu Writ Petition (Criminal) No. 2 of 2020 (Supra) and submits that as per the law laid by the Hon’ble Apex Court , 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. At this juncture, it is necessary to reproduce Section 202(1) Cr.P.C.

“202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.”

6. The issue whether before issuance of summons to the accused residing outside the jurisdiction of the court can be dispensed with in a proceeding under Section 138 of the N.I. Act has been dealt with in Suo Motu Writ Petition (Criminal) No. 2 of 2020 (Supra), in para nos. 10, 11 and 12 and the same are being reproduced herein below.

10. Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out. The amendment to Section 202 of the Code with effect from 23.06.2006, vide Act 25 of 2005, made it mandatory for the Magistrate to conduct an inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court. (See: Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors., Abhijit Pawar v. Hemant Madhukar Nimbalkar and Anr. and Birla Corporation Limited v. Adventz Investments and Holdings Limited & Ors.). There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain c