Ram Asre Alias Ram Ashray Seth and 5 Ors. Vs the State of Assam and Anr.

Heard Mr. T. Gogoi, learned counsel for the petitioners. Also heard Mr. D.C.C. Phukan, learned counsel appearing for respondent No. 2 and Mr. Lokur, learned Addl. Public Prosecutor appearing for the State.

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By way of this petition under Sections 482/397/401 of CrPC, 1973, the petitioner is seeking quashing of the criminal proceeding being Case No. 353/2012 now pending in the Court of learned Judicial Magistrate 1^st Class, Dibrugarh arising out of complaint dated 18.10.2012 filed against the petitioners.

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The facts of the case is that the respondent No. 2 filed a complaint before the Court of Chief Judicial Magistrate at Dibrugarh, alleging that the petitioner alongwith his family members, who are residence of Johnpur, Badi Masjid, Uttar Pradesh has harassed the respondent No. 2 and demanded dowry and for misappropriation of the stridhan.

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Based on the aforesaid complaint, the learned Magistrate Court by Order dated 18.10.2012 took cognizance of offence and issued process against the petitioners.

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Aggrieved by the aforesaid order, the present criminal petition has been

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filed seeking quashing of the said Order dated 18.10.2012.

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Mr. T. Gogoi, learned counsel for the petitioners submits that no cause of action whatsoever has arisen within the territorial limits of the learned Magistrate Court at Dibrugarh and therefore, the Order dated 11.06.2013 is without jurisdiction. He further submits that the learned Magistrate issued process without following the mandatory procedure prescribed under Section 202 of the CrPC in the case when the accused persons’ residence is outside the jurisdiction of the learned Magistrate Court.

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In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of National Bank of Oman Vs. Barakara Abdul Aziz & Another reported in (2013) 2 SCC 488.

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Per contra, Mr. D.C.C. Phukan, learned counsel for the respondent No. 2 submits that part of cause of action having arisen within the jurisdiction of the learned Magistrate Court at Dibrugarh, the impugned Judgment and Order of learned Magistrate Court taking cognizance of the offence warrants no interference from this Court.

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I have considered the submissions made at the bar and I have perused the materials available on record. I have also considered the case laws cited at the bar.

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Reading of the complaint, it appears that part of cause of action is alleged to have arisen within the territorial limits of the learned Magistrate Court at Dibrugarh and therefore, the contention of Mr. T. Gogoi, learned counsel for the petitioners as regards lack of jurisdiction is rejected.

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It appears that the petitioners reside outside the jurisdiction of the learned Magistrate Court.

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Section 202 of the CrPC is reproduced hereunder for ready reference:-

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“ 202. Postponement of issue of process:-

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(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;

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Provided that no such direction for investigation shall be made—

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

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(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.

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(2) In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness 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.

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(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.”

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Reading of Section 202 of CrPC, it is evident that it is incumbent upon Magistrate to carry out the inquiry or direct investigation before issuing process where accused resides beyond the area over which Magistrate concerned exercises jurisdiction.

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Reference is made to the decision of the Apex Court in the case of National Bank of Oman Vs. Barakara Abdul Aziz & Another (Supra), wherein paragraphs 8, 9 and 12 are reproduced hereunder for ready reference:-

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“8. We find no error in the view taken by the High Court that the C.J.M. Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 Cr.P.C. before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the C.J.M. Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 Cr.P.C. before issuing the process.

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9. The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202Cr.P.C. is different from the investigation contemplated in Section 156as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint –

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(i) on the materials placed by the complainant before the Court

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(ii) for the limited purpose of finding out whether a prima facie case for issue of

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process has been made our; and

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(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.”

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Reading of the aforesaid decision, it is abundantly clear that if the accused resides outside the jurisdiction of the learned Magistrate Court, the learned Magistrate ought not to issue process and take cognizance immediately but postpone the same and either hold an inquiry himself or direct an investigation to be made before issuing the process.

¶60

In the instant case, perusal of the impugned Order dated 11.06.2013, it is evident that despite the petitioners residing outside the jurisdiction of the learned Magistrate Court at Dibrugarh, the learned Magistrate instead of postponing the issue of process took cognizance and issued process. It is thus apparent that the learned Magistrate has not followed the mandatory prescription provided under Section 202 of CrPC before issuing the impugned process by Order dated 11.06.2013.

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That being so, the order of the learned Magistrate taking cognizance and issuing process is bad in law.

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Accordingly, in the interest of justice, I am of the considered view that this criminal petition can be disposed of by directing the learned Magistrate for passing fresh order after complying with the procedure laid down in Section 202 CrPC within two months from the date of receipt of this order.

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