Partly allowed

Narsimhan Krishnan v. the State of Maharashtra and Ors.

Bombay HC3 Nov 2014WP/1282/2014

Case brief

AI extract

What is this about?

Petitioner challenged process issued under S.138 NI Act via Constitutional jurisdiction. High Court held that inquiry under S.202 CrPC is mandatory when accused resides outside Magistrate's jurisdiction. Petition partially allowed to set aside process and direct inquiry.

What did the court decide?

Order issuing process set aside; Magistrate directed to hold inquiry under S.202 CrPC before proceeding unless taking action under S.201.

Narsimhan Krishnan Vs the State of Maharashtra… — Civil Procedure and Limitation | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.1282 OF 2014

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Narasimhan Krishnan	..	Petitioner
-Versus-
State of Maharashtra & Ors.	..	Respondents

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Mr.Sanjay Udeshi with Ms.Radha Ved i/b. Sanjay Udeshi & Co. for petitioner

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Ms.S.S.Kaushik, APP for State

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Mr.Anand Poojari i/b. S.I.Joshi & Co. for respondents.

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CORAM : ABHAY M. THIPSAY, J. DATE : 3^rd November 2014.

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P.C.

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1] Rule. By consent rule made returnable forthwith. By

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consent heard finally forthwith.

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2] The petitioner is one of the accused in C.C.No.2566/SS/2012 pending before the Metropolitan Magistrate, 58^th Court at Bandra. The case is in respect of the offence punishable under section 138 of the Negotiable Instruments Act and arises on a complaint filed by

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the respondent No.2 herein. The petitioner has approached this Court challenging the order issuing process against him on a number of grounds. The petitioner had challenged the said order by

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filing a revision application before the Court of Sessions but the said application came to be dismissed.

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3] It is in these circumstances, that the petitioner has approached

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this Court invoking its constitutional jurisdiction and praying that the order passed by the Magistrate issuing the process against him, as also the order passed by the Court of Sessions in Revision, be set aside.

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4] Though a number of contentions have been raised in the course of hearing, the learned Counsel for the parties agree before me to have the matter decided only on the ground that 'no inquiry as contemplated under section 202 of the Code of Criminal Procedure was held by the Magistrate before issuing the process against the petitioner'. Admittedly, the petitioner is a resident of Secunderabad. Since he was residing beyond the area within which the learned Magistrate exercised his jurisdiction, it was incumbent upon the Magistrate to have held an inquiry before deciding whether or not there was sufficient ground for proceeding against the petitioner.

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5] Admittedly, such an inquiry has not been made.

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6] The contention that process could not have been issued without holding an inquiry, as contemplated by section 202 of the Code of Criminal Procedure,(the Code for short) was taken before the Court of Sessions in the Revision Application also. But the court of sessions came to the conclusion that the relevant provisions are not mandatory and that they are only directory. This view of the sessions court is contrary to the law laid down by the Supreme Court of India in the case of National Bank of Oman Vs. Barakara Abdul Azia & Anr., reported in 2013(2) ACR 1643(SC) and Udai Shankar Awasthi Vs. State of U.P. & Ors., reported in (2013) 2 SCC 435.

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7] It is not in dispute that the learned Magistrate had not postponed the issue of process and had not held any inquiry before deciding to issue process against the petitioner. Since the provision requiring holding of inquiry in cases where an accused would be residing outside the area within which the Magistrate would exercise his jurisdiction is held to be mandatory, and since it has been held

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that process issued without complying with the requirement to hold an inquiry is vitiated, the petition must succeed on that point.

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8] Under these circumstances, the other contentions raised by

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the petitioner are not examined and the same are kept open.

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9] Petition is partially allowed.

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10] The order issuing process as passed by the Magistrate is set aside. The learned Magistrate shall hold an inquiry into the matter as contemplated under section 202 of the Code and then decide whether or not there is sufficient ground for proceeding. It is clarified that the Magistrate need not do so, in case he decids to take action as contemplated under section 201 of the Code.

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11] The petition is disposed of in the aforesaid terms.

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( ABHAY M. THIPSAY, J.)

Narsimhan Krishnan v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Narsimhan Krishnan v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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