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.
