ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent heard finally.

2. Heard the learned counsel for the petitioners, A.P.P. for respondent No. 1 – State and learned counsel for respondent No. 2.

3. In view of the limited challenge raised in the petition confined to issuance of process without conducting inquiry as contemplated u/s 202 of Cr.P.C., it is not necessary to discuss the facts in detail.

4. Heard the learned counsel for the petitioners, respondent No. 2 and A.P.P. for State and perused the impugned order.

5. Mr. R.S.Deshmukh, the learned counsel for the petitioners invited attention to the impugned order and submitted that in view of the amendment made to section 202 of Code of Criminal Procedure which is brought into effect from 23/06/2006 before passing order of issuance of process, it is mandatory on the part of learned Magistrate to conduct inquiry by himself or to direct to make investigation by the police officer and then to form opinion that sufficient grounds exist to proceed against the accused. It is contended that the impugned order is passed without conducting the mandatory inquiry as contemplated u/s 202 of Cr.P.C. The accused are residents of Aurangabad. The complaint was filed at Udgir, District : LaturIn view of the mandate of section 202 of Code of Cr.P.C., the Magistrate ought to have postpone the process and conducted enquiry on his own or ordered investigation as contemplated u/s 202 of Code of Criminal Procedure before issuing process.

6. On the other hand, learned counsel representing respondent No. 2 has supported the order passed by the trial Court.

7. Having appreciated the submissions advanced, in the light of the order passed, I am of the view that the order is not sustainable in law. Section 202 of Code of Criminal Procedure reads as under :

“ 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 Session; 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.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. ”

8. Thus, the plain reading of the provision spell out that if the accused are not residing within the jurisdiction of the Magistrate, then it is incumbent upon the Magistrate to postpone the process and conduct enquiry on his own or through the investigating agency or any other person. Only after conducting the investigation, i