Magistrate should first conduct enquiry before issueing summons in a criminal case against a person outside his territorial jurisdiction

In an important judgment by a Bench of Supreme Court of India on 14th December 2016, comprising Justice A.K.Sikri and Justice A.M.Sapre, the Hon’ble Court drew attention to the amendment in Section 202 of the Code of Criminal Procedure and held that where the accused resides in an area outside the territorial jurisdiction of the Magistrate, the Magistrate should conduct an enquiry or investigation before issueing process against such accused. It is not an empty formality.

The facts of this case are that the police, under supervision of Lokayukta of Karnataka, conducted a raid on 18th March 2009 on certain persons, including Mr.Hemant Madhukar Nimbalkar, an IPS officer. Lokayukta held a press conference in which he stated that Mr. Hemant, who was an IPS Officer and posted as Superintendent of Police with charge of anti-terrorist squad, had collected assets in the region of Rs. 250 crores. In the process, the Lokayukta discussed the details of the raid on the properties belonging to said Mr. Hemant situate in Mumbai, Kolhapur and Belgaum. The press statement issued by the Lokayukta was widely reported the very next day in a number of prominent national as well as local newspapers, like Indian Express, Hindu, Times of India etc. Sakal Newspaper, which is a Marathi newspaper also carried this news item. It was also mentioned that he had collected money from silver and elephant teeth smuggling. Description was also given about his modest background leading very ordinary life during his tenure as the student and amassing wealth over a period of time through the aforesaid smuggling activities which made him rich. It was reported that it was mystifying story that one boy in the middle class family becomes IPS Officer and collects property worth Rs. 250 crores within eight to ten years. The particulars of the properties acquired by him with their value were mentioned.

Feeling agitated by the aforesaid publications in different editions of Sakal newspaper, Mr. Hemant filed complaint before the Chief Judicial Magistrate, Kolhapur under Section 501, 502 and 504 read with Section 34 of the Indian Penal Code on 5th November, 2009. In this complaint apart from the four editors of the four editions of the newspaper at Kolhapur, Belgaum, Pune and Nasik, Mr. Abhijit Pawar (A-1), Managing Director of Sakal Newspaper and Mr. Pratap Rao Govind Rao Pawar (A-2), Chairman of this group of Newspapers (who incidentally is father of Abhijit Pawar) were also impleaded as accused persons. A-1 and A-2 were not residents of Kolhapur, but residents of Pune. After recording the statement of the complainant Mr. Hemant, the Magistrate issued summons against all the accused persons. Feeling aggrieved, all the accused persons filed appeal to the Sessions Court, which was however dismissed.

A-1 and A-2 approached Bombay High Court by filing criminal writ petitions. The High Court dismissed the writ petition of A-1 and allowed the writ petition of A-2. In this backdrop, A-1 Mr. Abhijit Pawar approached the Supreme Court by filing SLP(Crl.) No. 9318 of 2012 (later converted to CRIMINAL APPEAL NO. 1225 OF 2016).

The Supreme Court held, thus :

“22) Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. …

The note for the amendment reads as follows:

“False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” …

23) For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. …

24) The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. …

26) Insofar as, these two accused persons are concerned there is no enquiry of the nature enumerated in Section 202, Cr.P.C.

27) The Learned Magistrate did not look into the matter keeping in view the provisions of Section 7 of the Press Act and applying his mind whether there is any declaration qua these two persons under the said Act and, if not, on what basis they are to be proceeded with along with the editors. Application of mind on this aspect was necessary. It is made clear that this Court is not suggesting that these two accused persons cannot be proceeded with at all only because of absence of their names in the declaration under Press Act. What is emphasised is that there is no presumption against these persons under Section 7 of the Press Act and they being outside the territorial jurisdiction of the concerned Magistrate, the Magistrate was required to apply his mind on these aspects while passing summoning orders qua A-1 and A-2. ….”

Thus, the notice / summons issued in respect of A-1 was quashed with direction to the Magistrate to take up the matter afresh qua A-1 and pass necessary orders as are permissible in law, after following the procedure contained in Section 202, Cr.P.C. As regards A-2, the Court held that the complainant needs to be given an opportunity to show as to whether A-2 (Chairman) was actually associated with the publication or not. The Court directed the Magistrate to hold the inquiry and apply his mind as to whether notice against A-1 and A-2 needs to be issued or not.

The case is 'Abhijit Pawar vs Hemant Madhukar Nimbalkar' 2016 (12) Scale 788.

-->

Click for Full Text of Judgment.

Complaint under Section 138 NI Act for cheque dishonor can be filed only at place where the account from which the cheque is issued and dishonored is located

In a landmark decision which is going to have very wide ramifications in the cheque dishonor cases throughout India, a 3-Judge Bench of the Hon'ble Supreme Court of India on 1st August 2014 in the case titled as 'Dashrath Rupsingh Rathod vs State of Maharashtra' held that a complaint case under Section 138 of Negotiable Instruments Act for dishonor of cheque can be filed only in the court at the place where the bank branch in which the accused has his account and from which account the cheque was issued and dishonored, is located. This is departure from the earlier judicial dispensation whereunder the complainant could file case at any of the several places like the place where the cheque was deposited by the complainant. The latest judgment on territorial jurisidiction of criminal court in a case under Section 138 has taken into account the harassment faced by the people who are impleaded as accused in complaint cases filed under Section 138 at places far away from the accused's place. The court also took note of the fact that Section 138 of the NI Act is being rampantly misused so far as territorial jurisdiction for trial of the complaint is concerned.

The Court further clarified that all pending complaint cases under Section 138 where the case is still at early stage and recording of evidence under Section 145(2) of the NI Act after appearance of accused has not yet started, will be returned by the concerned magistrate's courts for the complainant to file the same in proper court within 30 days from the date of return of complaint. 

This judgment is going to affect lakhs of cases and is likely to set a milestone in criminal jurisprudence as far as the law relating to cheque dishonor is concerned. 

Read the Full Judgment.

Mobile App for all your questions and queries related to Indian law

Dear friends,

Here is the link to the Mobile app developed out of my book COURTS POLICE AUTHORITIES AND COMMON MAN, which answers all your basic queries about Indian law and Legal system in very user-friendly manner. This app is called 'Indian Law' and is available on google play store for download. You can also download it at following link :


https://play.google.com/store/apps/details?id=com.sgsolicitors.indianlaw

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court : Police bound to register the Complaint else face action

The Supreme Court of India recently passed an order thereby alleviating the often made grievance of the public that their compaint is not registered in the form of FIR by the police officers and they have to run from pillar to post for getting the FIR registered.

The relevant part of the said Order reads as under :
“The grievance in the present writ petition is that the occurrence had taken place in the month of May and, in that very month, on 11th May, 2008, the written report was submitted by the petitioner before the officer In-charge of the concerned Police Station, who sat tight over the matter. Thereafter, when the Superintendent of Police was moved, a First Information Report (for short "F.I.R.") was registered.Even thereafter, steps were not taken either for apprehending the accused or recovery of the minor girl child. It is a matter of experience of one of us (B.N. Agrawal, J.) while acting as Judge of Patna High Court, Chief Justice of Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the concerned police authorities do not register F.I.Rs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further experience shows that even after orders are passed by the concerned courts for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the Inspecting Judges of the High Court during the course of inspection of Courts and Superintendents of Police are taken to task, then only F.I.Rs are registered. In large number of cases investigations do not commence even after registration of F.I.Rs and in case like the present one, steps are not taken for recovery of the kidnapped person or apprehending the accused person with reasonable despatch. At times it has been found that when harsh orders are passed by the Members of the Judiciary in a State, the police becomes hostile to them for instance in Bihar when a bail petition filed by a police personnel, who was accused was rejected by a member of Bihar Superior Judicial Service, he was assaulted in the Court room for which contempt proceeding was initiated by Patna High Court and the erring police officials were convicted and sentenced to suffer imprisonment. On the other hand, there are innumerable cases that where the complainant is a practical person, F.I.Rs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were subject matter of theft or dacoity. In the case before us allegations have been made that theStation House Officer of the concerned Police Station is pressurising the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do not know there may be innumerable such instances. In view of the above, we feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants,they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same. Keeping in mind these facts, we are of the view that notices should be issued to Government of all the States and Union Territories besides Director Generals of Police/Commissioners of Police as the case may be. Issue notice to the Chief Secretaries of all the States and Union Territories and the Director Generals of Police/Commissioners of Police,as the case may be, to show cause as to why aforesaid directions be not given by this Court. Notices may be sent to the parties by Fax and it should be mentioned therein that the order has been put on the Website of the Supreme Court of India so that they may file response without loss of time.”