Allowed

Chandrakant Tanhaji Pawar and Others v. the State of Maharashtra and Another

Bombay HC21 Nov 2013WP/463/2013

Case brief

AI extract

What is this about?

Criminal Writ Petition challenging the issuance of process under Section 202 CrPC for offences under IPC 494, 495. Single Judge held the requirement to postpone process and hold inquiry where accused reside outside jurisdiction is mandatory. Order set aside.

What did the court decide?

Order issuing process under Section 202 CrPC by the Magistrate was set aside and the case remanded for proper inquiry.

Chandrakant Tanhaji Pawar and Others Vs the State of… — Bail and Remand | Bombay HC (2013)

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Cri.W.P.463.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 463 OF 2013

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1. Chandrakant S/o Tanhaji Pawar Age : 30 years, Occ : Agriculture & Service, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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2. Tanaji S/o Namdeo Pawar Age : 60 years, Occ : Agri, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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3. Vimalbai W/o Tanaji Pawar Age : 53 years, Occ : Household, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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4. Namdeo S/o Bhaguji Pawar Age : 78 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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5. Dhanaji S/o Tanaji Pawar Age : 33 years, Occ : Agri., & Girni, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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6. Shobha W/o Dhanaji Pawar Age : 29 years, Occ : Household, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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7. Santosh S/o Tanaji Pawar Age : 32 years, Occ : Agri., & Service, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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8. Manisha Santosh Pawar Age : 27 years, Occ : Household, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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9. Shivaji S/o Namdeo Pawar Age : 62 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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Cri.W.P.463.13.odt

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10. Sumanbai W/o Shivaji Pawar Age : 55 years, Occ : Household, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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11. Dattatraya S/o Namdeo Pawar Age : 55 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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12. Savita W/o Dattatraya Pawar Age : 48 years, Occ : Household, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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13. Nandkumar S/o Shivaji Pawar Age : 32 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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14. Manisha W/o Nandkumar Pawar Age : 29 years, Occ : Service, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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15. Rajendra S/o Shivaji Pawar Age : 30 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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16. Sharad S/o Dadasaheb Pawar Age : 24 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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17. Sambhaji S/o Dashrath Mhaske Age : 28 years, Occ : Agri., R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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18. Swati W/o Sambhaji Mhaske Age : 22 years, Occ : Household, R/o Mirajgaon (Old Kada Road), Tq. Karjat, Dist. Ahmednagar.

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19. Dadasaheb S/o Babasaheb Khedkar Age : 45 years, Occ : Agri., R/o Sangvi, Tq. Ashti, Dist. Beed.

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3 Cri.W.P.463.13.odt 20. Bapurao S/o Babasaheb Khedkar Age : 42 years, Occ : Agri., R/o Sangvi, Tq. Ashti, Dist. Beed. 21. Ramesh S/o Babasaheb Khedkar Age : 40 years, Occ : Agri., R/o Sangvi, Tq. Ashti, Dist. Beed. 22. Bhimrao S/o Maruti Dhembre Age : Major, Occ : Agri., R/o Rajegaon, Tq. Daund, Dist. Pune. 23. Subhash S/o Deoram Shinde Age : 27 years, Occ : Agri., R/o At Post Takli Kazi, Tq. Nagar, Dist. Ahmednagar. .. PETITIONERS -VERSUS- 1. The State of Maharashtra 2. Sou. Swapanali W/o Chandrakant Pawar Age : 25 years, Occ : Nil, R/o C/o Prabhakar S/o Madhavrao Marathe At Post Shrigonda Factory, Tq. Shrigonda, Dist. Ahmednagar. .. RESPONDENTS ... Advocate for Petitioners : Mr. N.V. Gaware APP for Respondent No.1 : Mr. S.R. Palnitkar Advocate for Respondent No.2 : Mr. R.R. Karpe ...

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CORAM : ABHAY M. THIPSAY, J.
 Dated: November 21, 2013

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ORAL JUDGMENT :-

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Rule. By consent, Rule made returnable

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forthwith. By consent, heard finally.

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2.The petitioners are the accused in

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4 Cri.W.P.463.13.odt

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R.T.C. No. 315 of 2012 pending before the Judicial
Magistrate, First Class, Shrigonda, Dist.
Ahmednagar. The said case arises on the basis of
a complaint lodged by the respondent no.2 herein,
alleging commission of offences punishable under
section 494 of the Indian Penal Code (IPC) and
section 495 of IPC, read with section 109 of IPC.
The Magistrate, after examining the respondent
no.2 on oath, in accordance with the provisions of
section 200 of the Code of Criminal Procedure
(hereinafter referred to as “the Code”), directed
to issue process against the petitioners with
respect to the aforesaid offences, by an order
dated 05.01.2013.

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Being aggrieved by the said order, the

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petitioners have approached this Court invoking
its constitutional jurisdiction.

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3.Heard Mr. N.V. Gaware, the learned

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counsel for the petitioners. Heard Mr. S.R.
Palnitkar, the learned Additional Public

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5 Cri.W.P.463.13.odt

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Prosecutor for Respondent/State. Heard Mr.R.R.

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Karpe, the learned counsel for the respondent
No.2.

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4.The learned counsel for the petitioners

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submitted that it was apparent from the complaint
itself that barring two persons, named as accused,
all other accused were residing beyond the
territorialjurisdictionofthelearned

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Magistrate, who issued the process. He submitted

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that after the amendment of section 202 of the

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Code by Act 25 of 2005, the legal position is that
in a case where the accused is residing at a place

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beyond the area in which the Magistrate exercises

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his jurisdiction, it would be incumbent upon the

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Magistrate to postpone the issue of process
against the accused, and either to hold an inquiry

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into the matter or direct an investigation to be

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made by a police Officer or any other person for

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the purpose of deciding, whether or not, there are

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sufficient grounds for proceeding. He submitted

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that since admittedly the process came to be

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6 Cri.W.P.463.13.odt

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issued without holding any inquiry or

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investigation as contemplated in section 202 of
the Code, the order issuing process is bad in law
and needs to be set aside.

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5.Mr. R.R. Karpe, the learned counsel for

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the respondent no.2 attempted to suggest that the

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provision requiring holding of an inquiry is
merely directory and not mandatory. He submitted
that failure to hold inquiry would not necessarily

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vitiate the order issuing process. He placed
reliance on the decision rendered by a learned
Single Judge of this Court in the case of Bansilal

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S. Kabra V/s Global Trade Finance Ltd., anr.
{2010(2) Bom.C.R. (Cri.) 754} in support of this
contention.

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6.Indeed, in the case of Bansilal Kabra

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(supra), such a view was taken by the learned
Single Judge, but as pointed out by the learned
counsel for the petitioners, contrary view has

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7 Cri.W.P.463.13.odt

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been taken in several other decisions rendered by
different learned Single Judges of this Court. In
any case, the learned counsel for the petitioners
pointed out that a Division Bench of this Court in
Barakara Abdul Aziz V/s National Bank of Osman
(S.A.O.G.) anr. {2013(2) LJSOFT 95} has clearly
held the relevant provision to be mandatory,

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observing that the said provision casts an
obligation on the Magistrate to 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

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person as he thinks fit) for the purpose of
deciding, whether or not, there are sufficient
grounds for proceedings in a case where the
accused is residing at a place beyond the area in
which the Magistrate exercises his jurisdiction.

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7.Mr. Gaware also pointed out a recent
judgment of the Supreme Court of India in the case
of Udai Shankar Awasthi V/s State of U.P. & anr.

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8 Cri.W.P.463.13.odt

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{2013(6) LJSOFT (S.C.) 296, wherein also Their
Lordships have opined the relevant provisions to
be mandatory (Para No.26 of the reported
judgment).

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8.Thus, there can be no doubt that failure

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to hold an inquiry before issuing process, where
the accused person/persons are residing beyond the
territorial jurisdiction of the Magistrate
concerned, would vitiate the order issuing
process. In view of this settled position of law,
the impugned order needs to be set aside.

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9. The Petition succeeds.

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The order issuing process, as passed by

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the learned Magistrate, is set aside.

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The learned Magistrate shall deal with

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the complaint in accordance with law and keeping
in mind the provisions of section 202 of the Code.

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Cri.W.P.463.13.odt

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10. The Writ Petition is allowed in the

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aforesaid terms.

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11. Rule is made absolute accordingly.

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Sd/- ( ABHAY M. THIPSAY, J. )

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sga/-

Chandrakant Tanhaji Pawar and Others v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Chandrakant Tanhaji Pawar and Others v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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