PROJECT OF CRIMINAL

PROCEDURE CODE

“Territorial Jurisdiction of
Criminal Courts in Inqueries and
trials”

Submitted to: Dr. Anju Choudhary

Submitted by: Shubhkarmanpreet Kaur

B.Com. L.L.B. (5th semester)

Roll No. 202/17

 ACKNOWLEDGEMENT

It is a genuine pleasure to express my deep sense of thanks and gratitude to my teacher

Anju mam, who gave me the golden opportunity to do this wonderful project of
Criminal Procedure on “Territorial Jurisdiction of criminal courts in Inquiries and Trials”. I
would like to express my gratitude towards all my seniors and staff members of
University Institute of Legal Studies, Panjab University, and Chandigarh for their kind co-
operation and encouragement which helped me in completion of this project.

The completion of this project could not have been accomplished without the support
of my family. Special thanks to my seniors, classmates and friends.

Last, but not the least, my parents, who are an important all-time inspiration for me. So
with due regards, I express my gratitude towards them.

Shubhkarmanpreet Kaur
 Table of Content

1. Introduction
2. Territorial jurisdiction of Criminal Courts
3. JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS
 Ordinary place of inquiry and trial.
 Place of inquiry or trial
 Offence triable where act is done or consequence ensues
 Place of trial where act is an offence by reason of relation to other offence.
 Place of trial in case of certain offences.
 Offences committed by letters, etc.
 Offence committed on journey or voyage
 Place of trial of offences triable together
 Power to order cases to be tried in different sessions divisions.
 High Court to decide, in case of doubt, district where inquiry or trial shall take place
 Power to inquire into and try offences committed outside India
4. Conclusion
5. Recent judgements
6. Google form
7. Bibliography
 Table of cases

 Asit Bhattacharjee v. Hanuman Prasad Ojha and others, 2007 CRI LJ 3181
 Bhora Ram v. State of Rajasthan , AIR 2008 SC 2666 : (2008) 4 SCC 103 : 2008 CrLJ 3496
 Central Bank Of India vs The State (Gnct Of Delhi), (2019)
 K. Satwant Singh v. State of Punjab, 1960 AIR 266, 1960 SCR (2) 89
 K.M. Mathew v. K. Abraham, 1998 CrLJ 327Ker
 Kuljit Singh Sethi vs The State Of Assam And Anr, (2019)
 S. Karan Singh v. S, Jatinder, 2007 CrLJ 2588 (J & K).
 Mst Mahjabeen And Others vs Sheela Rashid, (2017)
 Mohd. Daud v. Superintendent 1993 CriLJ 1358.
 Mubarak Ali v. State of Bombay , AIR 1957 SC 857
 Purushottam Das Dalmia v. State of West Bengal , 1961 AIR 1589, 1962 SCR (2) 101
 S. Karan Singh v. S, Jatinder, 2007 CrLJ 2588 (J & K).
 State of Madhya Pradesh v. Suresh Kaushal, (2003) 11 SCC 126
 Subramaniam Swamy v. P.S. Pai, 1983 (2) BomCR 129
 Saroj v. Ganesh, 2007 CrLJ NOC 101Bom .
 S.S. Binu vs State Of West Bengal & Anr, (2018)
INTRODUCTION:
Of all the branches of law, criminal law is the most important branch of law, because it closely touches
and concerns man in his day-today affairs. From the beginning of the human civilization the human
society has prescribed a code of conduct for its members. Any act or anti-social behavior which will
violate the code of conduct and will reduce human happiness is considered as crime. But violations are
bound to occur and crime is inevitable. It is the responsibility of the state to protect the members of the
society from any antisocial behaviour and hence the state makes criminal laws with the object to protect
the society from the criminals. The Criminal law occupies a predominant place among the agencies of
social control. But when a person commits a crime he is not automatically punished or he himself will
not come and confess that has committed a crime and accept punishment. There must be a procedure to
enforce the criminal law. The offender must be brought before the court and his guilt must be proved.
For this process the procedural criminal law is necessary. However, the nature of most criminal
punishment is such that it confines the individual liberty of a person. Imprisonment, if illegal, violates
some of the most basic freedoms and rights associated with a democracy. Thus, we need a law that sets
the state’s machinery running with respect to enforcing law and order and imparting justice, and
regulates the procedure followed by these institutions. The Criminal procedure code refers to the
working of these institutions for the entire time period between when a crime has been committed until
the time the sentence against the crime is passed and the case is closed. It refers to the machinery to be
adopted by the State when a violation of the penal law, i.e., offence under the Indian Penal Code, has
been detected or reported. It also lays down the principles and procedure that must be followed while
prosecuting and adjudicating other claims. The investigation, inquiry and trial of the other offences are
also governed by these provisions, subject to any other law that may be in force which regulates the
manner of investigation, inquiry or trial of the matter.1 The Criminal Procedure Code is designed to look
after the process of the administration and enforcement of the Criminal law. The Criminal procedure is
an inseparable part of the penal law. Without the Criminal procedure code the substantive criminal law
will become worthless and meaningless. Our law of criminal procedure is mainly contained in the code
of criminal procedure 1973. It provides the machinery for the detection of crime, apprehension of
suspected criminals, collection of evidence, determination of the guilt or innocence of the suspected
person and the imposition of suitable punishment on the guilty person. The object, purpose, or design of
all procedural law is to further the ends of justice and not to frustrate them by the introduction of endless
technicalities.

The object of the Code is to ensure that an accused person gets a full and fair trial along certain well
established and well under stood lines that accord with notions of natural justice. Where an accused is
tried by a Court, the court must be a competent court under the law vested with jurisdiction to try such
cases, the accused must be told and made to understand the nature of the offence of which he is being
tried, his plea is recorded, he is provided with full and fair opportunity to defend himself against the
charge, it is substantial compliance of the outward form of law. And where the accused alleges and
shows substantial prejudice caused to him the compliance of law is not substantial. In the former case, if
there is an error or omission in the trial it is called a curable irregularity which does not vitiate the trial.
In the later case where prejudice is caused to the accused and it is a substantial prejudice, such error,
omission or mistake in trial is called incurable illegality and the consequence of it is vitiating the trial.
Justice is to be done and not denied. Justice is to be shown to have been done according to law and it is
not sacrificed at the altar of the procedure.1

Territorial jurisdiction of Criminal Courts :

All crime is of a local nature, and the jurisdiction over a crime belongs to the place where it is
committed. It is also a general principle of International Law that every person who is found to have
committed a crime within a foreign state is subject to its laws and also punishable under such laws

Section 177 to 189 contained in chapter XIII of Criminal Procedure Code,1973 enynciate the general
principles for determining which shall be the proper Court to enquire into or try an offence .Further as
observed earlier ,Section 156(1) makes these general rules applicable for deciding which shall be the
proper police station to entertain investigations into an offence. The basic rule in the context of Local
Jurisdiction is contained in Section 177 which provides that ordinarily every offence is to inquired into
or tried by a court within whose local jurisdiction it was committed . The Jurisdiction of a Police officer
to investigate a case would depend upon a large number of factors including those as contained in
section 177,178 and 181 CrPC . The subsequent sections namely Section 178 to 186 and Section 188,
considerably enlarge the ambit of Local Jurisdiction in which the enquiry or tral of the offences might
take place. This is intended to minimize the inconvenience that might be caused by the strict adherence
to the basic rule incorporated in Section 177. The rules laid down in these sections are not mutully
exclusive but cumulative in effect and intended to facilitate the prosecution of offenders by providing a
wider choice of courts for imitating the inquiry or trial.

1
Object and purpose of the Code of Criminal Procedure, available at: https://www.academia.edu/ (Visited on
november 1, 2019
 JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

Section. 177 : Ordinary place of inquiry and trial.

This section is meant for the facility of both, the prosecution and the defence who can conveniently
attend trial if it is held in the Court of their locality.
The provision of this section regarding the place of inquiry and trial is applicable to trials whether held
under the Code or under any local or special laws. The words “ordinarily” used in the section clearly
suggests that the provisions are not exclusive and there are certain other special provisions in the Code
itself which provide for alternative venues for inquiry and trial for certain offences.
The place of inquiry or trial of an offence is generally dependent as to where and how the offence was
committed as gathered from the contents of the complaint or the police report, i.e., the charge-sheet. In
absence of any positive proof to the contrary, the Court will be presumed to have jurisdiction on the
basis of facts made out by averments.
Generally, a Magistrate within whose local jurisdiction the offence is committed is authorised to take
cognizance and try the case or commit it to the Court of Session. The subsequent transfer of locality to
another district does not oust the jurisdiction of the Magistrate.
Where the offence consists of different acts done in different places such as conspiracy, it may be
inquired into or tried by a Court having jurisdiction over any such place.
In Defamation cases the Trial Court has the jurisdiction to go into the merits of issue pertaining to
territorial jurisdiction.
K.M. Mathew v. K. Abraham,2
In respect of a defamation case against a newspaper for publishing a defamatory article in the
newspaper, if the newspaper is printed and published at one place and circulated at another place, the
Court within jurisdiction of which the newspaper is circulated has also the jurisdiction to entertain the
case.

Offence under section 498A IPC : Complaint filed by a wife against the cruelty by husband under
Section 498-A cannot be entertamed by the Court situate at the place of her parent’s residence as no part
of alleged cruelty or harassment arose within the jurisdiction of that Court
Bhora Ram v. State of Rajasthan3,
All the alleged acts as per the complaint had taken place in the State of Punjab. But the complaint was
filed in Sri Ganganagar in the State of Rajasthan against the appellant and challan was filed before the
A.C.J.M., Ganganagar who framed charges against the appellants under ss. 498A and 406I.P.C. But no
part of cause of act ion took place at Sri Ganganagar even if they were then residing at Sri Ganganagar.
The Court of Sri Ganganagar had no jurisdiction to try the case. So, the Supreme Court quashed the

2
K.M. Mathew v. K. Abraham, 1998 CrLJ 327Ker
3
Bhora Ram v. State of Rajasthan , AIR 2008 SC 2666 : (2008) 4 SCC 103 : 2008 CrLJ 3496
proceedings pending before the A.C.J.M., Sri Ganganagar, granting liberty to the complainant to file the
complaint to appropriate Court in the State of Punjab.
In such cases only Magistrate of the place or places where the wife was actually subjected to cruelty
shall have territorial jurisdiction to try the case.
Bigamy ( S.494, I.P.C) : In such cases, a complaint against the husband by wife, when she was residing
with her parents, it was held that Court having jurisdiction over the place of wife’s residence (parents)
could entertain the complaint as Section 177 was covered by Section 182 (2)
S. Karan Singh v. S, Jatinder,4
When the second marriage has taken place at 'B', the Court at place 'B' can conduct the enquiry and trial
of the offence of bigamy. But the Court at place 'J' where the complainant first wife is residing there at
present has no jurisdiction to entertain the complaint of bigamy.

Any High Court, in exercise of its power under Section 407 may order that any offence be inquired into
or tried by any Court not otherwise empowered under Sections 177 to 185.

Section 178: Place of inquiry or trial:

a) When it is uncertain in which of several local areas an offence was
committed, or
b) where an offence is committed, partly in one local area and partly in
another, or
c) where an offence, is a continuing one, and continues to be committed in
more local areas than one, or
d) where it consists of several acts done in different local areas, it may be
inquired into or tried by a Court having jurisdiction over any of such local
areas.
The section is primarily intended to resolve the difficulty that may arise where there is a conflict as to
jurisdiction of the Courts situated in different areas in order to prevent an accused person getting off
because of the doubt as to which Court (Magistrate) has the jurisdiction to try the case.
Section 178(a): UNCERTAINITY –
A person charged with offence of breach of trust either at a place X, Y or Z but it is uncertain at which
particular place he actually committed the offence. As per Section 178 (a), he may be tried at any of
these places. Same rule may also be applicable for the offence of criminal conspiracy if it is not certain
as to exactly at what place it was hatched.

Section 178(b): OFFENCE PARTLY COMMITED IN ONE LOCAL AREA AND PARTLY IN
OTHER-
Where an offence is commenced within the local jurisdiction of one Court and completed within the
local jurisdiction of another Court, such an offence may be tried by either of the two Courts.

4
S. Karan Singh v. S, Jatinder, 2007 CrLJ 2588 (J & K).
Section 178(c): CONTINUING OFFENCE-
A conspiracy to commit an offence has been treated as a continuing offence. Again, abduction is a
continuing offence but kidnapping is not a continuing offence. Travelling without a valid passport has
been treated as a continuing offence.
Mohd. Daud v. Superintendent 5
In this case, District Jail, Moradabad, the accused was initially arrested and detained in Maharashtra for
an offence under NDPS Act. Subsequently he was brought to Moradabad in U.P. in connection with
another case. On being acquitted in Sessions trial at Moradabad, he challenged the validity of his arrest
and detention in Maharashtra in the High Court of Allahabad.

The High Court held that the Allahabad High Court had no jurisdiction under Section 178 to declare the
arrest and detention of the accused under NDPS Act in Maharashtra as illegal, because it constitutes an
altogether different offence having no nexus with his detention at Moradabad. It was beyond the
jurisdiction of the High Court of Allahabad to decide the legality of an arrest or detention for an offence
which was committed in Maharashtra.
Section 178(d): SEVERAL ACTS CONSTITUTING THE OFFENCE DONE IN DIFFERENT LOCAL
AREAS:
Where an offence consists of several acts done in different local areas, it may be inquired into or tried by
a court having jurisdiction over any of such local areas.6

Section 179: Offence triable where act is done or consequence ensues. When an act
is an offence by reason of anything which has been done and of a consequence which
has ensued, the offence may be inquired into or tried by a Court within whose local
jurisdiction such thing has been done or such consequence has ensued.
This section prescribes the venue of the trial of cases in which a person is accused of an offence by
reason of some act done by him and of some consequences that have ensued from such act. In such
cases, the offence can be inquired into or tried by any Court within the local limits of whose jurisdiction
the act was committed or consequences ensued.
The offences contemplated under this section are those which are not complete till a special
consequence has ensued. Thus “consequences” constitute the essential ingredient of the offence to be
covered under this section.

The section, however, does not extend to offence punishable under Section 376, IPC. The cases of
cheating, deception , dishonestly inducing delivery of property etc. may be covered under this section
and either of the Courts from whose jurisdiction they were committed and in whose jurisdiction its
consequences ensues shall have jurisdiction to try such cases.

However, the question of Court’s jurisdiction in cases involving the offence of criminal breach of trust
and criminal misappropriation of property is to be governed by Section 181 (4) of the Code.

5
Mohd. Daud v. Superintendent 1993 CriLJ 1358.
6
R.v. kelkar’s , Criminal Procedure, EBC publishing (P) Ltd, Lucknow, Sixth edition (2019)
 Mubarak Ali v. State of Bombay7
In this case, the accused from Karanchi made false representations to the complainant at Bombay
through letters, telegrams and telephone talks as a consequence of which the complainant parted with
money at Bombay on the faith of such representations.
The Supreme Court held that the entire offence took place at Bombay and that the representations,
though made from Karanchi, were made at Bombay and, therefore, the Bombay Court had the
jurisdiction to try the case of cheating.

Purushottam Das Dalmia v. State of West Bengal8

In this case, the Supreme Court held that the Court having the jurisdiction to try the offence of
conspiracy also has the jurisdiction to try an offence constituted by the overt acts which are committed
in pursuance of the conspiracy beyond its jurisdiction and all the offences can be tried together jointly
by the Court trying the offence of conspiracy.
Where the wife was tortured at her husband’s place in Hoogly and she fell ill as a consequence of such
torture at her father’s place at Howrah, the Court at Howrah had the jurisdiction to try the case under
Section 498-A of IPC.

State of Madhya Pradesh v. Suresh Kaushal,9

In this case, the allegations were that wife was subjected to physical torture when she was pregnant and
she had to be taken back to her parental home at place J. Due to beating, miscarriage took place at J.
The High Court held that Court at J had the jurisdiction to try the offence. The plea of the accused that
since acts alleged against him took place at I, where couple resided after marriage and hence Court at J
had no jurisdiction was, rejected by the High Court.

K. Satwant Singh v. State of Punjab10

The Supreme Court had held in this case, that where the act of misrepresentation by the accused was
done at one place and consequent delivery of property took at another place, the accused could be tried
for the offence of cheating by Court at either of these two places.
Where the accused kidnapped a girl from a village within the jurisdiction of one Court and actually
committed a rape on her in another village within the jurisdiction of another Court, it was held that the
provisions of Section 179 of the Code were not attracted because the consequence of rape was not an
essential part of the offence of kidnapping.

As regards the offence of defamation, the Court of the place where the defamatory letter was written and
posted or the place where it was received or read has the jurisdiction to inquire into or try the case.

Subramaniam Swamy v. P.S. Pai,11

In this case, the alleged defamatory statement was made by the accused in a press conference at
Chandigarh, and that statement was published in a newspaper which was published and circulated in
Bombay. It was held that since consequence was completed at Bombay, hence both the Courts at

7
Mubarak Ali v. State of Bombay , AIR 1957 SC 857
8
Purushottam Das Dalmia v. State of West Bengal , 1961 AIR 1589, 1962 SCR (2) 101
9
State of Madhya Pradesh v. Suresh Kaushal, (2003) 11 SCC 126
10
K. Satwant Singh v. State of Punjab, 1960 AIR 266, 1960 SCR (2) 89
11
Subramaniam Swamy v. P.S. Pai, 1983 (2) BomCR 129
Bombay and Chandigarh would have the jurisdiction to entertain the complaint and the complainant
could move either of these Courts.

Where the manufacture of substandard fertilizer was done at one place and its sale at another, the
manufacturer could be tried for an offence under the Essential Commodities Act, 1955 by the Court at
the place of sale of the fertilizer.

Where any Magistrate of the First Class has the power to take cognizance of any offence, no matter that
the offence is committed within his territorial jurisdiction or not, it was held that the complaint cannot be
quashed on the ground of territorial jurisdiction of the Court.

Section 180: Place of trial where act is an offence by reason of relation to other
offence.
When an act is an offence by reason of its relation to any other act which is also an
offence or which would be an offence if the doer were capable of committing an
offence, the first-mentioned offence may be inquired into or tried by a Court within
whose local jurisdiction either act was done.

The simplest illustration to explain the provisions of this section is an offence of abetment. A charge of
abetment may be inquired into or tried either by the Court within whose local jurisdiction the abetment
was committed or by the Court within whose local jurisdiction the offence abetted was committed. But
if the offence abetted is not actually committed, then the charge of abetment can be tried only at the
place where it has been committed.

Likewise, a charge of receiving or retaining stolen property may be inquired into or tried either by the
Court within whose jurisdiction the property was stolen or by any Court within whose local jurisdiction
any of such property was at any time dishonestly received or retained.

But so far as the offence of theft (i.e., stealing property or goods) is concerned, it can be tried only at a
place where the theft was actually committed and not at the place of receiving or retaining the stolen
property or goods unless by virtue of special provisions contained elsewhere in the Code, it has been
made possible, such as Section 181 (3) in case of theft.12

Section 181: Place of trial in case of certain offences.

The section provides for alternative local jurisdictions as to inquiry or trial in respect of certain offences
mentioned in sub-sections (1) to (5) of the section. These offences are
1. Being a thug (Section 311 IPC) or murder committed by a thug
2. Dacoity (Section 335 IPC) belonging to a gang of dacoits or dacoity with murder (Section 302
IPC)
3. Escape from custody (Section 274 IPC)
4. Kidnapping (Sections 359, 360 & 361 IPC)
5. Abduction (Section 362 IPC)

12
Places of Trial, http://lawtimesjournal.in/charge-under-crpc/( last visited on 13 November 2019)
 6. Theft (Section 378 IPC)
7. Extortion (Section 383 IPC)
8. robbery (Section 390 IPC)
9. Criminal misappropriation (Section 403 IPC)
10. Criminal breach of trust (Section 406 IPC) and
11. Possession of stolen property (Section 410 IPC)
12. Cheating
13. Forgery (415) (463 IPC), etc.

The offence of criminal breach of trust can be tried either in a Court within whose jurisdiction the
offence was committed; or where any part of property, which was the subject matter of the offence, was
received or retained; or at the place where property was required to be returned or accounted for by the
accused.

In cases where it is not known to the complainant as to where the misappropriation actually occurred,
jurisdiction will lie to the Court at the place where the property had to be delivered.

Asit Bhattacharjee v. Hanuman Prasad Ojha and others13

The Supreme Court in this case of has clarified that offences of cheating and criminal mis-appropriation
can be tried and investigated at the place where fraudulent representation is made or where property had
been entrusted or was to be accounted for.
Thus where the complainant company was having its business at place ‘C* in one state and the charges
for offences under Sections 420, 406, 120-B, etc. committed by company’s agent in another state, the
Police at “C’ place will have jurisdiction to investigate as the reconciliation of accounts took place at C,
notwithstanding the fact that major part of offence took place in another state.

Section 182 : Offences committed by letters, etc.

Section 182(1) Cheating-
It deals with the offence of cheating when it is committed through the post or telegram or telephone.
Provision of s. 182 as dealing with those cases where deception is practiced by letters or
telecommunication messages. Such cases are classified into two:
(i) The earlier part covered all cases of deception by letters or telecommunication messages,
and
(ii) The letter part was confined to such deception by letters or telecommunication messages
where, in addition to deception, property is also delivered to the offender.
It must be remembered that section 415, I.P.C. has been recognized to deal with two distinct classes of
offences of cheating:
(i) Where property is delivered and
(ii) Where property is not delivered, but an act or omission is done in addition to the practice of
deception in both cases.
Dealing with the cases of cheating generally by letters or telecommunication messages, the earlier part
of s. 182, CrPC leaves option with the complainant to choose his forum out of any of the two places, viz.
, the Court within whose local jurisdiction the letters or messages were either sent, or received; but in

13
Asit Bhattacharjee v. Hanuman Prasad Ojha and others, 2007 CRI LJ 3181
those particular cases of cheating where delivery of goods is also made in consequence of deception by
letters or telecommunication messages, the jurisdiction is confined to the Court within whose local
jurisdiction the goods are delivered. But in either case , the deception must be practised by letters or
telecommunication messages.

Sub section (2): Bigamy-

The jurisdiction to try the offence of bigamy has been widened by the amendment of sub-sec.(2) by Act
45 of 1978. In a case of bigamy, under s. 494 or 495 I.P.C.,any of the following Courts have territorial
jurisdiction to inquire into or try the offender--
a) The Court within whose jurisdiction the second marriage took place;
b) The Court within whose jurisdiction the offender last resided with his or her spouse by the first
marriage;
c) The Court within whose jurisdiction the wife by the first marriage has taken up
permanent residence offer the commission of the offence. 37

When after the husband committed the offence of bigamy, the first wife took her residence at her father's
house, the Court of that place will have the jurisdiction to enquire into or try the offence of bigamy filed
by the first wife.
However, even where the first wife had living in her father's house from the offence committed by the
husband, the Court of that place would have the jurisdiction in view of s. 182Cr.P.C. as amended by the
Amendment Act of 1978.

In order that the Court within whose local jurisdiction the offender resided with his or her first spouse
must mean the place where the accused last resided with the first spouse at the time of commission of
the offence of bigamy. The place when the spouse with the other spouse was living prior to the
commission of the offence of bigamy and not at the time of commission of the offence of bigamy would
have no jurisdiction to enquire into or try the offence.

The impact of the amended provision of section. 182 CrPC. is that the Court within whose local
jurisdiction the offence took place or where the offender last resided with his or her spouse by first
marriage would have the jurisdiction. So, when the first wife last resided with her husband at Warud
from which she deserted her husband, the Court of Warud would have the jurisdiction to try the offence
of bigamy also, apart from the place when the offence of bigamy took place.14

Section 183: Offence committed on journey or voyage-

In case of offences committed during journey or voyage it is generally not known as to at what exact
place the offence was actually committed. Therefore, determination of the jurisdiction of Court in such
cases might create some doubts, problems or difficulties which are intended to be resolved by the
provision of this section.
The section provides that the Court having local jurisdiction at the place of termination of the journey is
also competent to inquire into or try the accused for an offence committed in course of a journey.

14
Saroj v. Ganesh, 2007 CrLJ NOC 101Bom .
The provisions of this section are applicable only when the journey is continuous and uninterrupted and
the section applies only for trial of offences committed in India and not abroad.

In a case, where a quarrel took place on a running train between Shahjahanpur and Moradabad and the
accused got down at Moradabad, but the complainant terminated his journey at Jallundhar, where he
files the complaint against the accused, it was held that the Jallundhar Court had the jurisdiction to try
the case as per the provision contained in Section 183 of the Code.

Section 184: Place of trial of offences triable together-

When an accused person under Section 219,220 or 221 can be charged with and tried at one trial for all
or more offense, it is but reasonable to assume that the venue for the trial can be laid in any local
jurisdiction within which any of those offences may be inquired into or tried under the above mentioned
rules of chapter 13 of the code. Similarly when two or more persons may be charged with and tried
together for different offences under section 223, the prosecution would have similar choice of venue for
the trial.

Apart from the rule contained in section 184, it would be obvious that the provision of section 223 is not
controlled by section 177. It has been observed that there should be no reason why the provision of
section 219 to 223 might not also provide exceptions to section 177, if they do permit the trial of a
particular offence along with others in one court.15

Section 185: Power to order cases to be tried in different sessions divisions.

The power conferred on the State Government by Section 185 is “an extraordinary power intented to be
used only when some consideration of public interest (e.g. maintenance of public order during the trial
of a sensational case) justifies the holding of a session trial in different sessions division”
It may be noted that though the proviso to section 185 restrains the state government from passing any
such order which is repugnant to any direction issued earlier by the High court or the Supreme court in
this behalf, the High court or Supreme Court are, however, free to give any direction over riding the
effect of the order passed by the State Government under Section 185, in accordance with the provision
of Sections 406 and 407.

Section 186: High Court to decide, in case of doubt, district where inquiry or trial
shall take place:

This section makes provision for the solution of the difficulties that may arise with regard to the relative
jurisdiction of different Courts to dispose of a case. Where two Courts have concurrent jurisdiction to try
a case, the mere fact that one of them has taken cognizance of the offence does not preclude the other
from taking cognizance of the same offence. In such cases the High Court is empowered to interfere
under this section and to declare in which of the two Courts the proceedings should be continued.
If the Courts are not subordinate to the same High Court, then the question shall be decided by the High
Court within the local limits of whose appellate criminal jurisdiction the proceedings were first
commenced. Section 186 (b) applies only when both the cases are common and they arise out of the

15
Supra note 6 at p.g 213
same transaction or occurrence, and the parties are same, in which case, having regard to the
circumstances the High Court, within whose local limits of appellate criminal jurisdiction the
proceedings have first commenced would have jurisdiction to invoke powers under Section 186 (b) and
order consolidation of the subsequent proceedings commenced on the same occurrence elsewhere.16

Section 187: Magistrate’s power to inquire into an offence committed outside his
local jurisdiction-

Section 187 confers on the Magistrates of the First Class a power to initiate action against any person
within their jurisdiction who is reasonably suspected to have committed an offence triable by a court
outside that jurisdiction.
It will be seen that though the Magistrate does not take cognizance of the offence in the technical sense,
he is empowered by the section to inquire into it as if it had been committed within his local jurisdiction,
compel the person to appear before him and bind him to appear before Magistrate who will have
jurisdiction to inquire into the offence.
It may be noted that the power given to the magistrate under section 187 is available both in respect of
cognizable as well as non-cognizable offences.
The power to grant bail in respect of offences not punishable with death or near the place where he is
arrested instead of his being compelled to go to a far off place in custody for getting bail. This section
however, does not override the provisions of sections 75 to 81 which deal with execution of warrants of
arrest.

Section 188: Power to inquire into and try offences committed outside India-

According to Section 188 of the Code of Criminal Procedure, when an offence is committed outside
India by a citizen of India, whether on the high seas or elsewhere, or by any person not being such
citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it
had been committed at any place within India at which he may be found.

However, notwithstanding anything in any of the preceding sections of this Chapter, no such offence
shall be inquired into or tried in India except with the previous sanction of the Central Government.

Section 188 of the Code provides for the necessary procedural complement to Section 4 of the Indian
Penal Code and other penal laws have extra territorial application Section 188 of the Code refers to
crimes committed beyond the limits of India. The object of requiring the sanction of the Central
Government appears to be to prevent the accused person being tried over again for the same offence in
two different places.

The Central Government may refuse to extradite the offender if he is wanted for being tried in a foreign
country subsequent to his trial in an Indian Court or by refusing to sanction a prosecution against him if
he has already been tried in a foreign country in respect of the same offence.

16
Inquiry and trial http://www.shareyouressays.com/knowledge/section-186-of-code-of-criminal-procedure-1973-cr-p-c-
explained/115096 ( last visited on 16 November )
Section 188 of the Code does not apply to an offence committed by a foreigner outside Indian Territory
though he may subsequently be found in India.

Section 189 of the Code of Criminal Procedure provides that when any offence alleged to have been
committed in a territory outside India is being inquired into or tried under the provisions of Section 188
of the Code, the Central Government may, if it thinks fit, direct that copies of depositions made or
exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular
representative of India in or for that territory shall be received as evidence by the Court holding such
inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the
matters to which such depositions or exhibits relate.17

17
D D Basu, The Code of Criminal Procedure, 5th Edition (2014)
 CONCLUSION

Whenever an offence is committed, the first question which arises is that in whose jurisdiction the
offence would fall. The jurisdictional issue is the most important issue which needs to be resolved so
that the proceedings can begin without any hindrance. Sections 177-189 deals with the concept of
jurisdiction. Under normal circumstances, the case shall be inquired and tried by a court under whose
jurisdiction the offence has been committed.

However, there are certain cases where more than one Court has the power to inquire and try the cases.
Such issues have been explicitly dealt with by the provisions of the Code of Criminal Procedure. The
Code also mentions the circumstances when the offence is committed by an Indian citizen in a foreign
country or by a foreign travelling in an aircraft or ship registered in India. The courts need to consider all
the factors governing the jurisdiction and begin with the proceedings after referring to the Code of
Criminal Procedure.
 RECENT JUDGEMENTS

Mst Mahjabeen And Others vs Sheela Rashid on 7 July, 2017

1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
561-A no.82/2017 MP No.01/2017 c/w 561-A no.81/2017 MP no.01/2017 Date of order: 07.07.2017
Mst Mahjabeen and others Versus Sheela Rashid Coram:

Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:

For Petitioner(s): Mr Mohsin Qadiri, Advocate

For Respondent(s): Mr M. A. Qayoom, Advocate
Whether approved for reporting: Yes

1. Petitioners seek quashment of order dated 17th April 2017 passed by Principal Sessions Judge,
Srinagar, (for brevity "Revisional Court") and order of cognisance dated 29th June 2016, passed by
Judicial Magistrate 1st Class (2nd Additional Munsiff) Srinagar, (for short "Trial Magistrate") on
grounds set out therein.
2. Heard learned counsel for parties and considered the matter.
3. Learned counsel for petitioners states that no specific allegation is vituperated against petitioners for
commission of offence punishable under Section 406 RPC, nor police report specifically reflects
petitioners committed any offence and entire material before learned Trial Magistrate is bereft of any
such allegation that constitute an offence punishable under Section 406 RPC. Despite the same, learned
Trial Magistrate is said to have issued summons to petitioners, which, according to counsel, is an attack
to their right to liberty and that order has been passed in casual and mechanical manner and cannot
sustain in eyes of law. Learned counsel contends that provisions of Section 177 Cr.P.C. provide that
every offence shall ordinarily be enquired into and tried by a court within the local limits of whose
jurisdiction it was committed, which makes no option for the court but to deal with only those matters,
which have been committed or taken place within territorial jurisdiction of the court and therefore, order
dated 13th December 2016 is in tune with procedural law and order of Revisional Court dated 17th April
2017 is bad in law, especially when Trial Magistrate has made it clear that the offence alleged had been
committed in a different district and not at District Srinagar.
4. Learned counsel for petitioners also argues that the issue of territorial jurisdiction in the complaint-
matters can be taken even after cognisance by Magistrate for the reason that it is only the prima facie
existence of commission of offence, which forms opinion for Trial Magistrate to take cognisance but as
far as territorial jurisdiction to try offences are concerned, that goes to the root of the matter and trying
an offence without jurisdiction, is nothing but abuse of process of law, which seems to have been done
by Revisional Court while passing order impugned dated 17.04.2017. His further contention is that
mandate of judgment passed by Apex Court in Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 , has
been wrongly applied to the instant matter by Revisional Court, which deals with power to recall the
order by learned Judicial Magistrate, once cognisance is taken, but instant case is all about territorial
jurisdiction, which is otherwise statutory bar under the provisions of Code of Criminal Procedure to
enquire or try the matters when the finding of Magistrate over territorial jurisdiction has already been
announced vide order dated 13th December 2016. Learned Revisional Court, according to counsel, is
not empowered to confer jurisdiction over learned Judicial Magistrate, who has already decided the
issue of territorial jurisdiction in negative. To cement his arguments, learned counsel for petitioners
refers to Y. Abraham Ajith & ors v. Inspector of Police, Chennai and anr 2004 (8) SCC 100 ; Neelu
Chopra & anr v. Bharti 2009 (10) SCC 184; 2009 (11) SCC 286; Chandralekha & ors v. State of
Rajasthan & anr 2013 Cr. LJ (SC) 3644; Vinay Kumar Shailendra v. Delhi High Court Legal Services
Committee & anr 2014 (10) SCC 708; judgement dated 23rd August 2016 passed by the Supreme Court
in Criminal Appeal no.775 of 2013 titled Manoj Kumar Sharma & ors v. State of Chhattisgarh & anr;
Feroz Hassan Khan & ors v. Ather Shaheen 2010 (2) JKJ 584; and Kirandeep Electronics & anr v.
Videocon Industries Ltd 2010(2) JKJ 241;
5. Countering learned counsel for petitioners' submission, learned counsel for respondent avers that
learned Trial Magistrate vide order dated 17.12.2016 returned the complaint to respondent to be
presented before court of competent jurisdiction. Thereagainst respondent filed revision petition and
learned Revisional Court passed a detailed and well-reasoned order, which, according to learned counsel
for respondent, deals with all facets of the matter raised by petitioners. He argues that learned Trial
Magistrate has jurisdiction to try the complaint as the offence was continuing one as one part of offence
had been committed at Srinagar and another at Pampore and cause of action for filing complaint arose at
Srinagar. Learned counsel avers that if complaint does not disclose jurisdiction or from the content of
complaint, jurisdiction is uncertain, still Trial Magistrate has jurisdiction to try the complaint and in this
regard he refers to Chapter XV of Code of Criminal procedure that deals with jurisdiction of criminal
courts in inquiries and trials. Learned counsel further states that it is not permissible for the Magistrate to
review his decision of issuing process as there is no such specific provision available to recall such
order. To strengthen his argument, learned counsel has placed reliance to S.S. Khanna v. Chief
Secretary, Patna AIR 1983 SC 595; Pratibha Rani v. Suraj Kumar & anr (1985) 2 SCC 370; Rajesh
Bajaj v. State NCT of Delhi & ors AIR 1999 SC 1216; Poonam Chand Jain & anr v. Fazru (2004) 13
SCC 269; and Bhaskar Lal Sharma & anr v. Monica & ors (2014) 3 SCC 383.
6. In the present case, a complaint respondent lodged before learned Trial Magistrate on 3rd February
2016. Investigating the matter by SHO concerned under Section 202 Cr.P.C., instead of issuing process,
was directed. Report was received. Cognisance was taken. Process under Section 406 RPC, accordingly,
issued on 29th June 2016. Summons served upon accused/petitioners. Learned Trial Magistrate,
however, vide order dated 13th December 2016, returned complaint to respondent to be presented before
the court of competent jurisdiction.
7. Respondent here preferred a Criminal Revision against order dated 13th December 2016 before
learned Principal Sessions Judge, Srinagar. Revision has been allowed and Trial Magistrate order set-
aside.
8. The onset argument learned counsel for parties have taken, is that already a petition under Section
561-A no.43/2017 had been filed by present petitioners, which had been, vide order dated 26th April
2017, allowed and complaint pending before court of 3rd Additional Munsiff (Judicial Magistrate),
Srinagar, quashed and order dated 10th December 2013 passed thereon by said Judicial Magistrate, set-
aside. However, learned counsel for respondent vehemently and painstakingly has invited attention of
this Court to the observation in order dated 26th April 2017 in 561-A no.43/2017, by which this Court
has made it clear upon Trial Court that whatever mentioned in the said order, will not come in the way
of Trial Court in deciding the pending complaint, after the same has been restored by Principal Sessions
Judge vide order dated 17th April 2017 (impugned in this petition). Learned counsel for respondent, and
rightly so, has strenuously averred that an order of dismissal of complaint is no bar to entertainment of
second complaint on the same facts.
9. It is well settled that a second complaint can lie on fresh facts or even on the previous facts if a special
case is made out inasmuch as there is no statutory bar in filing a second complaint on the same facts, as
observed by the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh (1977) 1 SCC 57 and
Mahesh Chand v. B. Janardhan Reddy (2003) 1 SCC 734.
10. A Full Bench in Dwarka Nath Mondul v. Beni Madhab Banerjee ILR (1901) 28 Cal 652, adopting
and affirming the opinion of Macleam, C.J. in Queen Empress v. Dolegobind Dass ILR (1901) 28 Cal
211, has held that a fresh complaint can be entertained where there is manifest error, or manifest
miscarriage of justice in the previous order or when fresh evidence is forthcoming. Thus, there is no bar
to further proceedings under the law, and a Magistrate, to whom a complaint has been made under such
circumstances, is bound to proceed in the manner set out in Section 200, that is, to examine the
complaint and, unless he has reason to distrust the truth of complaint, or for some other reason expressly
recognised by law, such as, if he finds that no offence had been committed, he is bound to take
cognizance of the offence on a complaint and unless he has good reason to doubt the truth of complaint
he is bound to do justice to the complainant, to summon his witnesses and to hear them in presence of
accused. The same view was expressed by the Madras High Court in Malayil Kottayil Koyassan Kutty,
In re AIR 1918 Mad 494, and it was observed that there was nothing in law against entertainment of a
second complaint on same facts, on which a person had already been discharged. This view was
reiterated in Kumariah Naicker v. Chinna Naicker AIR 1946 Mad 167, where it was held that the fact
that a previous complaint had been dismissed, there was no bar to entertainment of second complaint.
The question was examined with reference to a large number of earlier decisions on the subject and it
was held by the Supreme court in Poonam Chand Jain's case (supra) that in a case where a previous
complaint is dismissed, the Magistrate may take cognizance of an offence and issue process if there is
sufficient ground for proceeding, but the second complaint on the same facts could be entertained only
in exceptional circumstances where new facts which could not, with reasonable diligence, have been
brought on record in the previous proceedings have been adduced and even the second complaint could
be dismissed after a decision has been given against the complainant in previous matter upon a full
consideration of his case. In that view of matter there is no bar in entertainment of a second complaint
on the same facts in exceptional cases.
11. As regards jurisdictional point raised by learned counsel for petitioners, it would be apropos to see
what Chapter XV of Code of Criminal Procedure envisages. Chapter XV relates to jurisdiction of the
criminal courts in inquiries and trials. In Chapter XV, Section 177 is its first Section and it provides:

"177. Ordinary place of inquiry and trial Every offence shall ordinarily be inquired into and tried by a
Court within the local limits of whose jurisdiction it was committed."
12. Section 177 ingeminates well established common law rule alluded to in Halsbury's Laws of
England (Vol. IX para 83) that the proper and ordinary venue for the trial of crime is the area of
jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. "All
crime is local, the jurisdiction over the crime belongs to the country where the crime is committed", as
observed by Blackstone. A significant word used in Section 177 of the Code is "ordinarily". Use of the
word indicates that the provision is a general one and must be read subject to the special provisions
contained in the Code. Exception implied by the word "ordinarily" need not be limited to those specially
provided for by the law and exceptions may be provided by law on consideration or may be implied
from the provisions of law permitting joint trial of offence by the same Court, as observed by the
Supreme Court in Purushottamdas Dalmia v. State of West Bengal Air 1961 SC 1589; L.N. Mukherjee
v. State of Madras AIR 1961 SC 1601; Banwarilal Jhunjhunwalla & ors v. Union of India and anr AIR
1963 SC 1620; and Mohan Baitha & ors v. State of Bihar and anr 2001 (4) SCC 350.
13. The above general rule has several exceptions and some of them are, qua present case, specified in
Sections 179, 180, and 182 of the Code, which provide:

"179. Accused triable in district where act is done or where consequence ensues When a person is
accused of the commission of any offence by reason of anything which has been done, and of any
consequence which has ensued, such offence may be inquired into or tried by a Court within the local
limits of whose jurisdiction any such thing has been done, or any such consequence has ensued
Illustrations
(a) A is wounded within the local limits of the jurisdiction of Court X, and dies within the local limits of
the jurisdiction of Court. The offence of the culpable homicide of A may be inquired into or tried either
by X or Z.
(b) A is wounded within the local limits of the jurisdiction of Court X and is, during ten days within the
local limits of jurisdiction of Court Y, and during ten days more than within the local limits of the
jurisdiction of Court Z, unable tin the local limits of the jurisdiction of either Court Y or Court Z, to
follow his ordinary pursuits. The offence of causing grievous hurt to A may be inquired into or tried by
X, Y or Z.
(c) A is put in fear of injury within the local limits of the jurisdiction of Court X, and is thereby induced,
within the local limits of the jurisdiction of Court Y, to deliver property to the person who put him in
fear. The offence of extortion committed on A may be inquired into or tried either by X or Y.
(d) A is wounded in the State of Surashtra and dies of his wounds in Srinagar. The offence of causing
A's death may be inquired and tried in Srinagar.
180. Place of trial where act is offence by reason of relation to other offence When an act is an offence
by reason of its relation to any other act which also an offence or which would be an offence if the doer
were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or
tried by a Court within the local limits of whose jurisdiction either act was done.
14. Section 179 of the Code envisages that when a person is accused of commission of offence by
reason of anything, which has been done and of any consequence which has ensued, such offence may
be inquired into or tried by a Court within the local limits of whose jurisdiction such act has been done
or any such consequence has ensued. Its Illustration as well envisions that if a person, injured in a
particular area, dies in other area, either of the courts, where the person got injured or died, may try such
case. Subsequent illustration also makes make more room. It envisages that if a person is wounded in a
particular area say X, and during first ten days he remained in the area of Y and thereafter for further ten
days he remained in the area of Z, but unable in both the areas of Y or Z, to follow his ordinary pursuits,
the offence causing grievous hurt to A may be inquired into or tried by X, Y or Z.
15. Again Section 182 envisages that when it is uncertain in which of several local areas an offence was
committed or where an offence is committed partly in one local area and partly in another or where an
offence is a continuing one and continues to be committed in more local areas than one or where it
consists of several acts done in different local areas, it may be inquired into or tried by a Court having
jurisdiction over any of such local areas. Thus it can be very well said that provisions of Sections 179,
180 and 182 are exceptions to the general rule laid down by Section 177 of the Code.

16. Continuing offence, as observed by the Supreme Court in State of Bihar v. Deokaran Nenshi and anr
AIR 1973 SC 908, is one which is susceptible of continuance and is distinguishable from the one, which
is committed once and for all, that it is one of those offences which arises out of failure to obey or
comply with the rule or its requirement and which involves a penalty, liability continues till compliance,
that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence
committed. A similar plea relating to continuance of offence was examined by the Supreme court in
Sujata Mukherjeet (Smt.) v. Prashant Kumar Mukherjee 1997 (5) SCC 30. The said case related to
demand of dowry. It was noted therein that though dowry was demanded earlier, husband of
complainant went to the place where complainant was residing and had assaulted her. The Supreme
Court held Section 178 was attracted. Same is true about present case.
17. The essential question that arises is whether any part of cause of action arose within jurisdiction of
concerned Court. In terms of Section 177 of the Code it is the place where offence was committed. In
essence it is the cause of action for initiation of proceedings against accused. While in civil cases,
normally expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code,
reference is to the local jurisdiction where offence is committed. These variations in etymological
expression do not really make position different. The expression "cause of action" is therefore, not a
stranger to criminal cases. It is well settled that cause of action consists of bundle of facts, giving rise to
cause to enforce legal inquiry for redress in a court of law. in other words, it is a bundle of facts, which
taken with the law applicable to them, gives the allegedly affected party a right to claim relief against
opponent. It must include some act done by the latter since in the absence of such an act no cause of
action would possible accrue or would arise. The expression "cause of action" has acquired a judicially
settled meaning. In the restricted sense cause of action means circumstances forming infraction of right
or immediate occasion for the action. In wider sense, it means necessary conditions for maintenance of
proceeding including not only alleged infraction, but also infraction coupled with the right itself.
Compendiously, expression means every fact, which it would be necessary for complainant to prove, if
traversed, in order to support his right or grievance to the judgement of the Court. Every fact, which is
necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such
fact, comprises in "cause of action". The expression cause of action has sometimes been employed to
convey restricted idea of facts or circumstances, which constitute either infringement or the basis of
right and no more. In a wider and more comprehensive sense, it has been used to denote the whole
bundle of material facts. Cause of action is generally understood to mean a situation or state of facts that
entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one
or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from
another person. "Cause of action", according to Black's Law Dictionary is entire set of facts that gives
rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must
prove in order to obtain judgment.
18. In the present case only question that require to be decided is whether on the allegations made in the
complaint filed by respondent, a prima facie case of commission of offences alleged in the complaint, is
made out against petitioners. The accused no.1 in the complaint, namely, Imtiyaz Ahmad Bhat, has not
come before this Court, who is said to have gone to Dubai. Having given my anxious consideration to
the averments made in the complaint, I am of the view that the facts, as alleged in the complaint, will
have to be proved, which can only be done in the course of a regular trial. It is wholly unnecessary to
embark upon a discourse as regards the scope and ambit of the Court's power to quash the impugned
orders. The appreciation, even in summary manner, of the averments made in a complaint or FIR would
not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear
on the very face of it. This is the core test that has to be applied before summoning the accused. Once
the said stage is over, the facts alleged have to be proved by complainant on the edifice of legal evidence
in order to establish penal liability of the person charged with the offence.
19. Now there remains the question as regards passing of the order of Revisional Court. The Revisional
Court, while setting aside learned Trial Magistrate order, returning complaint after having taken
cognisance and issuing process for appearance of the accused, has rightly opined that action on the part
of Trial Magistrate is in breach of Section 369 of the Code as also against the principles of law laid
down by the Supreme Court in Adalat Prasad's case (supra) and held that recalling an order of issuing
process runs counter to the scheme of the Code, which has not provided for review and prohibits
interference at interlocutory stages.
20. It is pertinent to mention here that Section 200 contemplates a Magistrate to examine the complaint
and examine upon oath the complainant and the witnesses present, if any. If on such examination of the
complaint and the witnesses, if any, the Magistrate, if he does not want to postpone issuance of process,
has to dismiss complaint under Section 203, if he comes to conclusion that the complaint, statement of
complainant and witnesses, has not made out sufficient ground for proceeding. Per contra, if he is
satisfied that there is no need for further inquiry and complaint, evidence adduced at that stage, has
material to proceed, he can proceed to issue process under Section 204 of the Code. Section 202 of the
Code contemplates postponement of issue of process and provides that if the Magistrate on receipt of a
complaint thinks fit to postpone issuance of process against accused and desires further inquiry into the
case, either himself or directs 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, he may
do so. In that process, if he thinks it fit, he may even take evidence of witnesses on oath, and after he
finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons
for so doing, as is contemplated under Section 203 of the Code.
21. An important aspect that needs to be taken into account by the Magistrate is that once cognisance of
complaint is taken and complainant and witnesses examined, and Magistrate is satisfied that there is
sufficient ground to proceed with complaint, he can issue process by way of summons under Section
204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section
204 is satisfaction of the Magistrate either by examination of complainant and witnesses or by inquiry
contemplated under Section 202 that there is sufficient ground for proceeding with complaint, hence
issue the process under Section 204 of the Code. In none of these stages, the Code has provided for
hearing the summoned accused, for obvious reasons that this is only a preliminary stage and the stage of
hearing of accused would only arise at a subsequent stage provided for in latter provision in the Code.
Before issuance of summons Magistrate should be satisfied that there is sufficient ground for proceeding
with the complaint but that satisfaction is to be arrived at by inquiry conducted by him as contemplated
under Sections 200 and 202, and the only stage of dismissal of complaint arises under Section 203 of the
Code, at which stage accused has no role to play and once process is issued under Section 204 of the
Code, the stage of Section 203 is already over and reconsideration of the decision to issue process is
impermissible in view of bar by Section 369 of the Code. Section 369 stipulates that no Court, when it
has signed its judgment, shall alter or review the same. At this juncture, it will be also necessary to take
note of what the Supreme Court has said in Subramanium Sethuraman v. State of Maharashtra (2004) 13
SCC 324. It has been laid down by the Supreme Court in the said case that it is impermissible for the
Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall
such order.
22. In Adalat Prasad's case (supra), the Supreme Court has considered the view it had taken in K. M.
Mathew v. State of Kerala (1992) 1 SCC 217 and held that issuance of process under Section 204 is a
preliminary step in the stage of trial contemplated at Chapter XX of the Code. Such an order made at a
preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the
Magistrate inasmuch as there being no provision under the Code for review of an order by the same
Court. Hence it is impermissible for the Magistrate to reconsider his decision to issue process in absence
of any specific provision to recall such order. In such circumstances, in the present case, impugned order
of Revisional Court is well-reasoned and needs no interference. As a corollary petition on hand is devoid
of any merit.
23. Learned counsel for petitioners has relied upon judgement dated 23rd August 2016 passed by the
Supreme Court in Criminal Appeal no.775 of 2013 titled Manoj Kumar Sharma & ors v. State of
Chhattisgarh & anr. Some attention-grabbing comments and remarks have been made by the Supreme
Court in the said case and pointed out that Chapter XIII of the Central Code of Criminal Procedure
provides for "jurisdiction of the criminal courts in inquiries and trials" and under the said Chapter there
are various provisions which empower the court for inquiry and trial of a criminal case and that there is
no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be
investigated, inquired or tried.
24. Whether an offence has been disclosed or not, must necessarily depend on the facts and
circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an
offence is disclosed, it will normally not interfere with the investigation into the offence and will
generally allow the investigation into the offence to be completed in order to collect materials for
proving the offence.
25. In the above backdrop, it is also very important to discuss the scope of inherent power of the High
Court under Section 561-A Cr.P.C. of the Code of Criminal Procedure. This point has been more
clarified in State of Haryana and ors v. Bhajan Lal and ors (1992) Supp (1) SCC 335, wherein the
Supreme Court also stated that though it may not be possible to lay down any precise, clearly defined,
sufficiently channelized and inflexible guidelines or rigid formulae or to give exhaustive list of myriad
kinds of cases wherein power under Section 561-A (pari material to Section 482 of the Central Code) for
quashing FIR, should be exercised, there are circumstances where the Court may be justified in
exercising such jurisdiction. These are, where FIR does not prima facie constitute any offence, does not
disclose a cognisable offence, justifying investigation by police; where allegations are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against accused; where there is an expressed legal bar engrafted
in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal grudge. Despite
mentioning these grounds, the Supreme Court unambiguously uttered a note of caution to the effect that
the power of quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too, in the rarest of rare case. The Supreme Court also warned that the Court
would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of
the allegations made in FIR or complaint and that extraordinary or inherent powers do not confer any
arbitrary jurisdiction on the Court to act according to its whims and caprice.
26. The Supreme Court in Padal Venkata Rama Reddy vs Kovvuri Satyanarayana Reddy, (2011) 12
SCC 437, while relying on Bhajan Lal's case (supra), has held:

"31. ......When exercising jurisdiction under Section 482 of the Code, the High Court would not
ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on
reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge.
The scope of exercise of power under Section 482 and the categories of cases where the High Court may
exercise its power under it relating to cognizable offences to prevent abuse of process of any court or
otherwise to secure the ends of justice were set out in detail in Bhajan Lal (supra). The powers possessed
by the High Court under Section 482 are very wide and at the same time the power requires great
caution in its exercise. The Court must be careful to see that its decision in exercise of this power is
based on sound principles. The inherent power should not be exercised to stifle a legitimate
prosecution."
27. The inherent power cannot naturally be invoked in respect of any matter covered by the specific
provisions of the Code. It is only where the High Court is satisfied either that an order passed under the
Code would be rendered ineffective or that the process of any court would be abused or that the ends of
justice would not be secured, that the High Court can and must exercise its inherent powers under
Section 561-A of the Code. This power can be invoked only in an event when the aggrieved party is
being unnecessarily harassed and has no other remedy open to it. The power under Section 561-A Cr.
P.C., is not intended to scuttle justice at the threshold but to secure justice.
28. In view of the above discussion and observations, the petitions on hand fail and are hereby dismissed
but in the circumstances without any orders as to costs. Interim direction(s) shall stand vacated.
( Tashi Rabstan ) Judge Srinagar 07th July 2017 Ajaz Ahmad I pronounce this judgement under Rule
138(3) of the J&K High Court Rules, 1999.
( M. K. Hanjura ) Judge Srinagar 07th July 2017 Ajaz Ahmad
S.S. Binu vs State Of West Bengal & Anr on 3 May, 2018
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction

Present:

The Hon'ble Justice Debasish Kar Gupta

And
The Hon'ble Justice Shekhar B. Saraf

CRR 1600 of 2013

S.S. Binu vs. State of West Bengal & Anr.
with
CRR 2801 of 2013
Varun Jain vs. Hirajuli Tea Co. Ltd.
with
CRR 2915 of 2013
Manjeet Gaba vs. M/s. Srie Equipment Finance
Pvt. Ltd.
with
CRR 2916 of 2013
Mangat Singh Gaba vs. M/s. Srie Equip Finance Pvt. Ltd.
with
CRR 2917 of 2013
Mangat Singh Gaba @ Mangat Gaba vs. M/s. Srie
Equipment Finance Pvt. Ltd.
with
CRR 2924 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2925 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2926 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2927 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
 CRR 2928 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2929 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2930 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2931 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2932 of 2013
Ashish Jhunjhunwala vs. Kotak Mahindra Bank Ltd.
with
CRR 2947 of 2013
Debasish Bauri & Ors. vs. State & Anr.
with
CRR 2955 of 2013
Sangita Kothari vs. Avinash Chandra Malpani
with
CRR 2956 of 2013
Ranjit Singh Kothari vs. Avinash Chandra Malpani
with
CRR 2957 of 2013
Anand Kothari vs. Avinash Chandra Malpani
With
CRR 3032 of 2013
With
CRAN 3246 of 2013
Kaberi Saha -Vs- State & Anr.
with
CRR 3059 of 2013
Rohitash Kumar Mittal vs. Stewart and Mackerticj Wealth Magt Mtrd
with
CRR 3061 of 2013
Rohitash Kumar Mittal vs. Stewart and Mackerticj Wealth Magt Mtrd
with
CRR 3063 of 2013
Rohitash Kumar Mittal vs. Stewart and Mackerticj Wealth Magt Mtrd
 with
CRR 3066 of 2013
Rohitash Kumar Mittal vs. Stewart and Mackertich Comm. Ltd.
with
CRR 3068 of 2013
Rohitash Kumar Mittal vs. Stewart and Mackertich Comm. Ltd.
with
CRR 3069 of 2013
Rohitash Kumar Mittal vs. Stewart and Mackertich Wealth Magt Ltd.
with
CRR 3126 of 2013
with
CRAN 3255 of 2013
Aditya Mukherjee -Vs- State & Anr.
with
CRR 2525 of 2013
Marjeet Gaba -Vs- State of West Bengal & Ors.
with
CRR 2526 of 2013
Manjeet Gaba vs. State of W.B. & Ors.
with
CRR 1956 of 2013
Pawan Kr. Agarwal vs. The State
with
CRR 1957 of 2013
Pawan Kr. Agarwal vs. The State
with
CRR 1958 of 2013
Pawan Kr. Agarwal vs. The State
with
CRR 2010 of 2013
Pawan Kr. Agarwal vs. The State
with
CRR 3646 of 2014
Bhushan Bhandari & Anr. -Vs- State of W.B.
with
CRR 2865 of 2013
Pawan Kumar Agarwal -Vs- M/s. R. Piyarilal Iron & Steel Pvt. Ltd.
with
CRR 2592 of 2013
Pawan Kumar Agarwal -Vs- M/s. R. Piyarilal Iron & Steel Pvt. Ltd.
with
CRR 2593 of 2013
Pawan Kumar Agarwal -Vs- M/s. R. Piyarilal Iron & Steel Pvt. Ltd.
with
CRR 3157 of 2013
Pawan Kumar Agarwal -Vs- M/s. R. Piyarilal Iron & Steel Pvt. Ltd.
with
CRR 3158 of 2013
Pawan Kumar Agarwal -Vs- M/s. R. Piyarilal Iron & Steel Pvt. Ltd.
with
CRR 3002 of 2013
Vikram Mordani -Vs- Navin Construction & Credit Pvt. Ltd.

For the petitioner in CRR Nos.1600/2013, : Mr. Ayan Bhattacharya,

2801/2013,2915/2013, 2916/2013, 2917/2013, Mr. Indrajit Adhikari
2924/2013, 2925/2013,2926/2013,2927/2013, Mr. Pawan Kumar Gupta,
2928/2013,2929/2013, 2930/2013, 2931/2013, Mr. Anjan Dutta,
2932/2013,2947/2013, 2955/2013, 2956/2013,
Mr. Anand Keshari,
2957/2013,3032/2013 with CRAN 3246/2013,
3059/2013,3061/2013, 3063/2013, 3066/2013, Mr. Amitava Ray,
3068/2013,3069/2013, 3126/2013 with CRAN Mr. Ganesh Jajodia,
3255/2013,2525/2013, 2526/2013, 1956/2013, Mr. Rohit Jalan,
1957/2013,1958/2013, 2010/2013, 3646/2014, Mr. Sharequl Haque,
2865/2013,
2592/2013, 2593/2013, 3157/2013 & Mr. Ozair Elahi,
3158/2013. Mrs. A. Ghosh Mondal
Mr. Soumya Nag

For the petitioner in CRR No.3002/2013 : Mr. Nilay Sengupta,

Ms. Swati Agarwal
For the opp. party in CRR Nos.3059/2013, : Ms. Rituparna De Ghose,
3061/2013, 3063/2013, 3068/2013 & 3069/2013
Ms. Joyti Singh

For the opp. party in CRR Nos.1956/2013, : Mr. Tirthankar Ghosh,

1957/2013, 1958/2013, 2010/2013, 3157/2013, Mr. Koushik Kundu,
3158/2013, 2865/2013, 2592/2013 & 2593/2013. Mr. Satudru Lahiri,
 Ms. Mrinali Majumder

For the Union of India : Mr. Kaushik Chanda,

Addl. Solicitor General,
Ms. Rajasshree Venkat Kundalia

Heard on : 08/01/2018, 09/01/2018, 11/01/2018, 12/01/2018, 15/01/2018, 16/01/2018,

17/01/2018, 18/01/2018, 29/01/2018, 30/01/2018, 31/01/2018, 01/02/2018 &
07/02/2018
Judgment on: 03/05/2018

Debasish Kar Gupta , J. :

1. These bunch of applications filed under Section 482 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) have been
assigned to this Bench by the Hon'ble Acting Chief Justice by an order dated
November 13, 2017 on the basis of a reference made by a learned Single
Judge of this Court (Tarun Kumar Gupta, J.) to decide the following issues
in the backdrop of the relevant provisions of law:-

"(1) Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973
as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 (25 of
2005) casts a mandatory duty upon the Magistrate to conduct an inquiry under
Section 202 of the Code before issuing process under Section 204 of the Code qua an
accused who resides outside the territorial limit of the Court of the said Magistrate?

(2) What will be the nature of such inquiry under Section 202 of the Code qua an
accused who resides outside the territorial limit of the said Court?

(3) Whether non-compliance of such inquiry in terms of Section 202 (as amended vide
Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will
invalidate or vitiate the order of process so issued?

(4) Whether non-compliance of such inquiry in terms of Section 202 (as amended vide
Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) can be
 raised only at the initial stage of the proceedings or after much deliberation as well?

(5) Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973
as enacted vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of
2005) will apply in case of offences punishable under Section 138/141 of the
Negotiable Instruments Act, 1881?"
2. The accused persons of the respective criminal cases bearing CRR
Nos.2987 of 2013 and 2988 of 2013 filed their respective revisional
applications under Section 482 Cr.P.C. for quashing their criminal
proceedings arising out of 420/406/120B of the Indian Penal Code, 1860
(hereinafter referred to as the I.P.C.)

3. Excepting the aforesaid applications, the rest of the revisional

applications have been filed praying for quashing of the criminal cases filed
under Sections 138/141 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the said Act, 1881).

4. Section 19 of the Criminal Procedure (Amendment) Act, 2005 has

been promulgated by the legislature for amending sub-section (1) of Section
202 Cr.P.C. which came into force with effect from June 23, 2006. By virtue
of the aforesaid amendment, the word "shall" has been inserted in sub-
section (1) of Section 202 Cr.P.C. After the above amendment sub-section
(1) of Section 202 Cr.P.C. runs as follows:-
202. Postponement of issue of process.- (1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorized 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:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Sessions; or
(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.. . . .

5. In all the aforesaid revisional applications a common plea has been

taken alleging that the petitioners have been residing at a place beyond the
territorial jurisdiction of the concerned Magistrate Court, but process were
issued against them under Section 204 Cr.P.C. without making necessary
mandatory inquiry as contemplated under sub-section (1) of the Section 202
Cr.P.C. It is their common plea that on that score alone the orders of
issuance of process under Section 204 Cr.P.C. and subsequent proceedings
cannot be sustained in law.

6. Mr. Ayan Bhattacharya, leaned Counsel appearing in a number of

cases for the petitioners and in some other cases for the private opposite
parties, advanced arguments claiming that the inquiry as contemplated
under sub-section (1) of Section 202 Cr.P.C. in respect of the accused
persons residing at a place beyond the territorial jurisdiction of the learned
Magistrate, which has been brought into the statute by the legislature by
way of the aforesaid amendment, is mandatory in nature. According to him,
the provision is mandatory as it will be evident not only from the use of the
word "shall" but also from the notes on clauses as enunciated by the
legislature making the amendment.

7. Reliance is placed by Mr. Bhattacharya on the decisions of National

Bank of Oman vs. Barakara Abdul Aziz & Anr., reported in (2013) 2 SCC
488, Udai Shankar Awasthi vs. State of U.P., reported in (2013) 2 SCC
435, Vijay Dhanuka & Ors. vs. Najima Mamtaj & Ors., reported in (2014)
14 SCC 638, Abhijit Pawar vs. Hemant Madhukar Nimbalkar & Anr.,
reported in 2016 (12) SCALE 788 in support of his above submissions.

8. It is further submitted by Mr. Bhattacharya that where a power is

given to do a certain thing in a certain way the thing must be done in that
way or not at all. Other methods of performance are necessarily forbidden.

9. Reliance is placed by Mr. Bhattacharya on the decision of Taylor vs.

Taylor, reported in (1875) 1 Ch. D. 426, Nazir Ahmad vs. Emperor,
reported in AIR 1936 PC 253 and State of U.P. vs. Singhara Singh,
reported in AIR 1964 SC 358 in support of his above submissions.

10. It is also submitted by Mr. Bhattacharya that if a mandatory

provision of law is not complied with, any action taken in ignorance of such
provision is a nullity in the eye of law even if prejudice is not caused. He
added that non-compliance of sub-section (1) of Section 202 Cr.P.C. affects a
very substantive right of the accused interfering with the fundamental rights
and liberty of an individual. Therefore, the question of prejudice will not
stand in the way unlike in cases of non-compliance of directory provisions of
law.

11. Reliance is placed by Mr. Bhattacharya on the decisions of Shyamal

Kumar Goswami & Anr. vs. Ashim Mukherjee, reported in (2014) 1 C Cr.
LR (Cal) 150, Harilal Shaw vs. State of West Bengal, reported in 89 CWN
557, Subramanian Swamy vs. Union of India, Ministry of Law & Or.,
reported in 2016 (5) SCALE 379, M/s. Nishka Properties (Pvt.) Ltd. &
Anr. vs. The State of West Bengal & Anr., reported in 2013 (3) CLJ (Cal)
390 and A. Devendran vs. State of Tamil Nadu, reported in (1997) 11
SCC 720 in support of his above submissions.

12. With regard to the nature of inquiry under the aforesaid provisions of
the Cr.P.C. qua an accused who resided outside the territorial limit of the
Court of the concerned Magistrate, it is submitted by him that the objects
and reasons appended to the amendment clarifies the purpose of
amendment, which is to ascertain and find out as to whether or not there
are sufficient grounds to proceed against the accused, and thus, to obviate
any possibility of innocent persons being harassed by unscrupulous
litigants and vexatious proceedings. According to him, in pre amendment
stage, the learned Magistrate could take resort to provisions of Section 202
Cr.P.C. in law in respect of those cases where some shadow of doubt
remained into the mind of the learned magistrate about the prima facie case.
But after the amendment, even if at the stage of inquiry under Section 200
Cr.P.C., the learned Magistrate is satisfied that sufficient ground of
proceedings against the proposed accused are made out, the Magistrate has
to undergo the stage of Section 202 Cr.P.C. by carefully scrutinizing the
entire case before him. He however added, an inquiry under Section 202
Cr.P.C. is not in the nature of a trial and the scope is extremely limited.
Nevertheless, it is to be conducted to find out the extent of involvement of an
accused, who resides outside the locality of the Magistrate, and furthermore
to arrive at a conclusion the prosecution qua such an accused is not
vexatious.

13. Pointing out the decision of the Apex Court in the matter of A. R.
Antulay vs. Ramdas Sriniwas Nayak & Anr., reported in (1984) 2 SCC
500, it is submitted by Mr. Bhattacharya that the observation made by the
Apex Court in the above case that the provision of Section 202 Cr.P.C. was
enabling in nature was the position at the pre amendment stage. According
to him, the above provision has been made mandatory by way of amendment
of sub-section (1) of Section 202 Cr.P.C. as observed by the Apex Court in
the matter of National Bank of Oman (supra).

14. Reliance is also placed on the decision of State of Jharkhand & Ors.
vs. Ambay Cements & Anr., reported in (2005) 1 SCC 368 and Vijaysinh
Chandubha Jadeja vs. State of Gujarat, reported in (2011) 1 SCC 609 in
this regard.

15. Regarding the consequences of non-compliance of inquiry under

sub-section (1) of Section 202 Cr.P.C. it is submitted by him that raising of
an objection at an early stage, i.e. at pre-trial stage will invalidate or vitiate
the order of process.

16. However, Mr. Bhattacharya further submits that raising of an

objection by an accused residing outside the territorial jurisdiction of the
Court of the learned Magistrate concerned against the order of process
issued without complying with the provisions of sub-section (1) of Section
202 Cr.P.C., cannot be entertained at a belated stage, i.e. after recording of
the evidence of the respective parties or at the stage of compliance of the
provisions of Section 313 Cr.P.C.
17. Regarding the applicability of the amended provisions of sub-section
(1) of Section 202 Cr.P.C. on the Negotiable Instruments Act, 1881
(hereinafter referred to as the said Act, 1881), it is submitted by Mr.
Bhattacharya that in order to achieve the object of the said Act, 1881 the
legislature thought it proper to make provision in the said Act, 1881 for
conferring certain privileges to the mercantile instruments contemplated
under it and provided special procedure in case of the obligation under the
instrument which was not discharged. Sections 142 and 143 of the said Act,
1881 brings some of the procedural provisions of the Cr.P.C. into the said
Act, 1881 by way of legislation. According to him, under the provisions of
sub-section (2) of Section 143 of the said Act, 1881 the procedure of
summary trial as envisaged under Chapter XXI of Cr.P.C. will apply. In view
of Sections 3 and 4 of the Cr.P.C., in absence of any contrary provision in
the said Act, 1881 the general law qua inquiry under Sections 200 and 202
Cr.P.C. will apply. However, according to him, no Magistrate can take
cognizance of an offence punishable under Section 138 of the said Act, 1881
on an oral complaint or on a police report.
18. According to him, under the amended provisions of Section 145 of
the said Act, 1881, affidavit may be accepted as evidence during enquiry or
trial. As a consequence, during enquiry under Section 200 Cr.P.C., instead
of examining the complainant on dock, a Magistrate can accept the affidavit
affirmed by him. Barring these provisions and a few others, according to
him, the general procedure of Cr.P.C. will apply proprio vigore in respect of
trial of offences punishable under the said Act, 1881 or in other words,
according to him, the non-obstinate clauses appended to the various
sections of the said Act, 1881 does not exclude the operation of the rest of
the provisions of Cr.P.C. Reliance is placed by Mr. Bhattacharya on the
decisions of Indian Bank Association vs. Union of India & Ors., reported
in (2014) 5 SCC 590 and Indra Kumar Patodia vs. Reliance Industries
Ltd. & Ors., reported in (2012) 13 SCC 1.
19. It is added by Mr. Bhattacharya that amendments in Chapter XVII of
the said Act, 1881, which has been inserted in the said Act, 1881, by virtue
of the Negotiable Instruments (Amendment) Act, 1988, with effect from April
1, 1989, takes umbrage of non-obstinate clauses in Sections 142, 143, 144,
145 and 147 of the said Act, 1881. Section 147 of the said Act, 1881
declares the offence under Section 138 to be compoundable in nature.

20. According to Mr. Bhattacharya, Cr.P.C. categories four types of

procedures in trial, one of such is summary trial which is a truncated
version of summary trial. Even to reach the stage of summons trial or
summary trial which opens with examination under Section 251 Cr.P.C.,
one has to pass through the stages of Sections 190, 200, 202 and 204
Cr.P.C. Therefore, according to him, under no stretch of imagination it can
be said that the amendment of Section 202 Cr.P.C. will be inapplicable in
respect of a trial of an offence under Section 138 of the said Act, 1881. He
added that the provision of Section 139 of the said Act, 1881 is also not a
decisive factor in adjudication of this issue because it encapsulates a
presumption of law that an accused is deemed to be innocent until proven
otherwise.

21. Reliance is placed by Mr. Bhattacharya on the decisions of Priyanka

Srivastava & Anr. vs. State of Uttar Pradesh & Ors., reported in (2015) 6
SCC 287 and Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441 in
support of his above submissions.
22. It is submitted by Mr. Tirthankar Ghosh, learned Counsel appearing
on behalf of the complainant/opposite parties in some of the aforesaid
applications, that according to the settled principles of law, Section 202
Cr.P.C. contemplates pronouncement of the issue of process in a case where
the accused is residing at a place beyond the area in which he exercises his
jurisdiction and thereafter to enter enquiry into the case by himself or direct
an investigation to be made by a police officer or by such other person as he
thinks fit. It is further added by him that the insertion of the words "and
shall, in a case where the accused is residing at a place beyond the area in
which he exercises his jurisdiction" has been inserted by Section 19 of the
Criminal Procedure (Amendment) Act, 2005 with effect from June 23, 2006
by the legislature to prevent innocent persons residing at far off places from
harassment by unscrupulous persons from false complaints. According to
him, though the use of the word "shall" in all circumstances is not decisive,
bearing in mind the context or intention of the legislature the above
provision is mandatory.

23. With regard to the mode of enquiry, it is submitted by him, that no

specific mode or manner of enquiry is provided under Section 202 Cr.P.C.
In the enquiry envisaged under Section 202 Cr.P.C. the witnesses are
examined whereas under Section 200 Cr.P.C., examination of the
complainant only is necessary with the option of examining the witnesses
present, if any.

24. Reliance is placed by Mr. Ghosh on the decisions of Vijay Dhanuka

vs. Najima Mamtaj (supra) in support of his above submissions.

25. With regard to the question of the consequence of non-compliance of

such enquiry in terms of Section 202 Cr.P.C. as amended by virtue of
Section 19 of the Criminal Procedure (Amendment) Act, 2005, it is
submitted by Mr. Ghosh that the question of the accused on receipt of
summons approaching the Court and making an application for dismissal of
complaint under Section 203 Cr.P.C. on a reconsideration of material
available on record is impermissible because by then Section 203 Cr.P.C.
has already been over and the Magistrate has proceeded further to Section
204 Cr.P.C. So, if a Magistrate takes cognizance of an offence, issues
process without there being allegation against any accused or any material
implicating the accused or in contravention of the provisions of Sections 200
and 202, the order of Magistrate may be vitiated and on that occasion then
 the relief an accused person can obtain at that stage is by invoking Section
482 Cr.P.C. so that the Court may pass an appropriate order remanding the
matter back to the learned Magistrate for compliance of the provisions of
Section 202 Cr.P.C.

26. Reliance is placed by Mr. Ghosh on the decisions of Kanti Bhadra

Shaw & Anr. vs. State of West Bengal, reported in (2000) 1 SCC 722,
Manharibhai Muljibhai Kakadia & Anr. vs. Shaileshbhai Mohanbhai
Patel & Ors., reported in (2012) 10 SCC 517 and Shivjee Singh vs.
Nagendra Tiwary & Ors., reported in (2010) 7 SCC 578 in support of his
above submissions.

27. However, according to him, initiation of a proceeding by an accused

person under Section 482 Cr.P.C. on the above ground at a belated stage is
not permissible.

28. Reliance is placed by Mr. Ghosh on the decisions of State of H.P. vs.
Gita Ram, reported in (2000) 7 SCC 452 and State of M.P. vs. Bhooraji &
Ors., reported in (2001) 7 SCC 679 in support of his above submissions.

29. Regarding the applicability of the amended provisions of Section 202

Cr.P.C. in the case of offences punishable under Sections 138/141 of the
said Act, 1881, it is submitted by Mr. Ghosh that Chapter XVII has been
inserted in the said Act, 1881, containing Sections 138 to 142 in the said
Act, 1881 by the legislature by enacting the Banking, Public Financial
Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, with
the object of promoting and inculcating faith in the efficacy of banking
system and its operation and giving credibility to negotiable instruments in
business transactions. According to him, in our country, in a large number
of commercial transactions the sanctity and credibility of issuance of
cheques were eroded to a large extent resulting in incalculable loss, injury
and inconvenience to the payee within and outside the country causing a
serious setback.

30. According to him, when the above amendments came into existence,
a complaint could be filed by the payee or holder in due course at 5 different
places as observed by the Apex Court in the matter of K. Bhaskaran vs.
Sankaran Vaidhyan Balan & Anr., reported in (1999) 7 SCC 510.
31. In 2002, consequent upon further amendment of the said Act, 1881
taking effect from February 6, 2003, although the provision was made for
condonation of the period of limitation, yet there was no change so far as the
territorial jurisdiction for filing of complaint cases in respect of the
dishonoured cheques were concerned. The above aspect was under
consideration by the Hon'ble Supreme Court in the matter of Dashrath
Rupsingh Rathod vs. State of Maharashtra & Anr., reported in (2014) 9
SCC 129 and the Apex Court came to a finding that the territorial
jurisdiction is restricted to the Court within whose local jurisdiction the
offence was committed, which in the present context is where the cheque is
dishonoured by the bank on which it is drawn.

32. It is submitted by him that the provisions of Section 143 to 147 of

the said Act, 1881, were inserted by way of amendment of the said Act,
1881, in 2002 with effect from February 6, 2003. The significance of such
amendment was incorporation of the provisions of Sections 145 and 146 in
the said Act, 1881, making it clear that the legislature by way of amendment
dispensed with the preliminary stages of criminal proceedings which are
akin to the Cr.P.C. According to him, the procedure, the manner in which
the complaint is to be dealt with as also the significance of Section 145 of
the said Act, 1881 have been interpreted by the Hon'ble Supreme Court in
the decisions of Radhey Shyam Garg vs. Naresh Kumar Gupta, reported in
(2009) 13 SCC 201, Mandvi Cooperative Bank Limited vs. Nimesh B.
Thakore, reported in (2010) 3 SCC 83, Indian Bank Association & Anr.
vs. Union of India, reported in (2014) 5 SCC 590 and N. Harihara
Krishnan vs. J. Thomas, reported in 2017 (8) Supreme 674.

33. It is also submitted by him that the object of insertion of sub-

sections (2) and (3) in Section 143 of the said Act, 1881 is to ensure speedy
trial within six months from the date of filing of the complaint.

34. Reliance is placed by Mr. Ghosh on the decisions of Indian Bank

Association (supra), Indra Kumar Patodia (supra) and J.V. Baharuni &
Anr. vs. State of Gujarat, reported in (2014) 10 SCC 494 in support of his
above submissions.

35. It is submitted by Mr. Ghosh that in the case of proprietorship

concerns, single person is an accused and therefore, drawer of the cheque or
his authorised signatory would be an accused. According to him, in case of
partnership firm, signatory(s) to the cheque, managing partner and the
partners who have been referred to by way of an averment in the petition of
complaint, i.e. the persons responsible for day to day business of the firm or
in charge of the firm at the time of commission would be the persons
accused. In case of Body Corporate or company the issue that how far plea
of falsity or false implication are tenable has already been settled by the
Hon'ble Supreme Court.

36. Reference is made by Mr. Ghosh to the decisions of S.M.S.

Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr., reported in (2005) 8 SCC
89, Standard Chartered Bank vs. State of Maharashtra & Ors., reported
in (2016) 6 SCC 62 and Tamil Nadu Newsprint and Papers Ltd. vs. D.
Karunakar & Ors., reported in (2016) 6 SCC 78 in support of his above
submissions.

37. It is submitted by Mr. Kaushik Chanda, learned Additional Solicitor

General that the provisions of Section 202 Cr.P.C. is mandatory in nature.
According to him, the amendment of Section 202 Cr.P.C., as enacted by
virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005, casts
a mandatory duty upon the Magistrate to conduct an enquiry under the
aforesaid provision before issuing process under Section 204 of the Code in
respect of an accused who resides outside the territorial limit of the Court of
the learned Magistrate concern. It is also submitted by him that in view of
the pronouncement of the Hon'ble Supreme Court the above provision
cannot be interpreted in any other way.

38. Reliance is placed by Mr. Chanda on the decisions of Shivjee Singh

vs. Nagendra Tiwary & Ors. (supra), National Bank of Oman (supra), Udai
Shankar Awasthi vs. State of U.P. & Anr., reported in (2013) 2 SCC 435
and Vijay Dhanuka etc. vs. Najima Mamtaj (supra) in support of his above
submissions.

39. Regarding the nature of enquiry, it is submitted by him that the

provisions of Section 202 Cr.P.C. has two objects: (1) to enable the
Magistrate to scrutinize carefully the allegations made in the complaint with
a view to prevent a person named therein as accused from being called upon
to face an unnecessary, frivolous or meritless complaint, and (2) to find out
whether there is some material to support the allegations made in the
complaint. Or in other words, according to him, the learned Magistrate
concerned is under obligation to arrive at a satisfaction after due application
of mind regarding the involvement of the accused in the commission of
offence.

40. Reliance is placed by him on the decisions of Manharibhai Muljibhai

Kakadia (supra), National Bank of Oman (supra) and Abhijit Pawar vs.
Hemant Madhukar Nimbalkar & Ors., reported in (2017) 3 SCC 528 in
support of his above submissions.

41. It is further submitted by him that the object of incorporating the

word "shall" in sub-section (1) of Section 202 Cr.P.C. is for protection of
innocent persons from harassment and, objection can be raised alleging
non-compliance of the above provision at any stage.
42. Reliance is placed by him on the decision of Abhijit Pawar (supra).

43. Regarding the applicability of the amended provisions of Sub-Section

(1) of Section 202 Cr.P.C. in case of offence punishable under Sections
138/141 of the said Act, 1881, our attentions have been drawn towards the
provisions of sub-section (2) of Section 4 Cr.P.C. to submit that all offences
under any law apart from Indian Penal Code, shall be inquired into, tried,
and otherwise dealt with according to the provisions of Cr.P.C., but subject
to any enactment for the time being in force regulating the manner or place
of investigating, inquiring into, trying or otherwise dealing with such offence.
It is submitted by him that the provisions of Sections 143, 144, 145, 146
and 147 provide for summary trial, mode of service of summons, evidence
on affidavit, treating of Bank's slip as prima facie evidence of certain facts
and offences to be compoundable respectively. Our attention has further
been drawn to the fact that all the provisions of Sections 143, 144, 145 and
147 begin with a non obstante clause. Therefore, according to him, the said
Act, 1881, provides for a separate procedure of summary trial adhering to
the directions of the Hon'ble Supreme Court given in the matter of Indian
Bank Association (supra). It is further submitted by him that the
procedure of summary trial is adopted under Section 143 subject to the
qualification "as far as possible", thus, leaving sufficient flexibility so as not
to affect the quick flow of the trial process. According to him, while following
the procedure of summary trial, the non obstante clause in Section 145 of
the said Act, 1881 allows for evidence of the complaint to be given on
affidavit in absence of the accused. This would have been impermissible in a
summary trial under the Cr.P.C. in view of the provisions of Sections 251
and 254 read with Section 273 Cr.P.C. However, the accused is fully
protected as under sub-section (2) of Section 145 of the said Act, 1881, he
has the absolute unqualified right to have the complainant and any or all of
his witnesses summoned for cross-examination.
44. Reliance is placed by him on the decision of Mandvi Cooperative
Bank Limited (supra) for the above proposition.

45. It is also submitted by him that in view of provisions of Section 145

of the said Act, 1881, it is a matter of discretion for the learned Magistrate to
call upon the complainant or his witness upon oath. Therefore, according to
him, compliance of the provisions of Section 202 Cr.P.C. in an application
filed under Section 138 of the said Act, 1881 is within the discretion of the
learned Magistrate concerned and non-compliance of the same does not ipso
facto vitiate the proceedings.

46. Reliance is placed by Mr. Chanda on the decision of the High Court
of Bombay in the matter of Rejul Ketan Raj vs. Reliance Capital Ltd. &
Ors., reported in MANU/MH/0140/2016 in support of his above
submissions.

47. We have heard the learned Counsels appearing for the respective
parties at length and we have given our anxious considerations to the issues
involved in this bunch of matters. We address the issues involved in the
reference as under:-
A. Requirement of conducting enquiry or directing investigation under
the provisions of Sub-Section (1) of Section 202 Cr.P.C. before issuing
process where accused is residing beyond territorial jurisdiction of the
Magistrate concerned :-

48. At the very outset let us recollect the long standing settled principles
of law relating to the mode of exercising a statutory power by a Court when
such power is conferred for the first time upon it. Lord Jessel M.R. observed
in Taylor vs. Taylor, reported in (1875) 1 Ch D 426 (at page 431) that
when a statutory power is conferred for the first time upon a Court, and the
mode of exercising it is pointed it means that no other mode is to be
adopted. The relevant portion of the above decision is quoted below:-
. . . . When a statutory power is conferred for the first time upon a Court,
and the mode of exercising it is pointed out, it means that no other mode is to be
adopted. For instance, the 16th section says that the proceeding is to be by
petition. It is enabling, I know, in form, that the application may be by petition;
but no other process can be adopted. That has been decided on a great variety
of Acts where the application has been directed to be by petition, and it has
been laid down that that being the mode pointed out by the Act which conferred
 the jurisdiction, you must exercise the jurisdiction (as the 2nd section of this Act
says in terms, though it was not necessary) according to the provisions of the
Act.

49. The above settled principles of law was applied by the Privy Council
in interpreting the law relating to criminal procedure in the matter of Nazir
Ahmad vs. King Emperor, reported in AIR 1936 PC 253 and the relevant
portion of the above decision is quoted below:-

. . . . It can hardly be doubted that a Magistrate would not be obliged to

record any confession made to him if, for example, it were that of a self-
accusing madman or for any other reason the Magistrate thought it to be
incredible or useless for the purposes of justice. Whether a Magistrate records
any confession is a matter of duty and discretion and not of obligation. The rule
which applies is a different and not less well recognised rule, namely, that
where a power is given to do a certain thing in a certain way the thing must be
done in that way or not at all. Other methods of performance are necessarily
forbidden. This doctrine has often been applied to Courts- 1 Ch. D. 426 (19) at
p.431- and although the Magistrate acting under this group of sections is not
acting as a Court, yet he is a judicial officer and both as a matter of construction
and of good sense there are strong reasons for applying the rule in question
to S. 164.

50. In post-independence era in our country, the above settled principles

of law has been adopted by the Hon'ble Supreme Court in interpreting the
provisions of Section 164 Cr.P.C. in the matter of State of U.P. vs. Singhara
Singh & Ors., reported in AIR 1964 SC 358 and the relevant portion of the
above decision is quoted below:-

7. In Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2) the
Judicial Committee observed that the principle applied in Taylor v. Taylor,
(1876) 1 Ch. D 426 to a Court, namely, that where a power is given to do a
certain thing in a certain way, the thing must be done in that way or not at all
and that other methods of performance are necessarily forbidden, applied to
judicial officers making a record under S. 164 and, therefore, held that
magistrate could not give oral evidence of the confession made to him which he
had purported to record under S. 164 of the Code. It was said that otherwise
all the precautions and safeguards laid down in Ss. 164 and 364, both of
which had to be read together, would become of such trifling value as to be
 almost idle and that "it would be an unnatural construction to hold that any
other procedure was permitted than that which is laid down with such minute
particularity in the sections themselves.

8. The rule adopted in Taylor v. Taylor (1876) 1 Ch. D 426 is well

recognised and is founded on sound principle. Its result is that if a statute has
conferred a power to do an act and has laid down the method in which that
power has to be exercised, it necessarily prohibits the doing of the act in any
other manner than that which has been prescribed. The principle behind the
rule is that if this were not so, the statutory provision might as well not have
been enacted. A magistrate, therefore, cannot in the course of investigation
record a confession except in the manner laid down in S. 164. The power to
record the confession had obviously been given so that the confession might be
proved by the record of it made in the manner laid down. If proof of the
confession by other means was permissible, the whole provision of S.
164 including the safeguards contained in it for the protection of accused
persons would be rendered nugatory. The section, therefore, by conferring on
magistrates the power to record statements or confessions, by necessary
implication, prohibited a magistrate from giving oral evidence of the statements
or confessions made to him.

51. In the matter of State of Jharkhand & Ors. vs. Ambay Cements &
Ors. (supra) it has been held by the Hon'ble Supreme Court that where a
statute is penal in nature it must be strictly construed and followed and the
relevant portion of the above decision is quoted below:-

26. Whenever the statute prescribes that a particular act is to be done in a

particular manner and also lays down that failure to comply with the said
requirement leads to severe consequences, such requirement would be
mandatory. It is the cardinal rule of interpretation that where a statute provides
that a particular thing should be done, it should be done in the manner
prescribed and not in any other way. It is also settled rule of interpretation that
where a statute is penal in character, it must be strictly construed and followed.
Since the requirement, in the instant case, of obtaining prior permission is
mandatory, therefore, non-compliance with the same must result in cancelling
the concession made in favour of the grantee, the respondent herein.
51. The Hon'ble Supreme Court, in the matter of Shivjee Singh (supra) while dealing with the issue
of non-examination of some witnesses mentioned in protest petition-cum-complaint in the light of
the provisions of sub-section (2) of Section 202 Cr.P.C. observed that the provisions contained in
Cr.P.C. are required to be interpreted keeping in view the well recognized rule of construction that
procedural prescriptions are meant for doing substantial justice. In the event, the violation of
procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the
same has to be treated as directory notwithstanding the use of word "shall" and the relevant portion
of the above decision is quoted below:-

7. We have considered the respective submissions. By its very nomenclature, CrPC. is a

compendium of law relating to criminal procedure. The provisions contained therein are required to
be interpreted keeping in view the well recognized rule of construction that procedural prescriptions
are meant for doing substantial justice. If violation of the procedural provision does not result in
denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory
notwithstanding the use of word 'shall'.
52. Chapter XIV of Cr.P.C. deals with conditions requisite for initiation of proceedings. Provisions
of Sections 190 to 199 Cr.P.C. deals with the above conditions. In dealing with the above Chapter
the provisions of Sections 190 and 192 are relevant for the present bunch of proceedings and those
are quoted below:-

190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the second class specially empowered in this
behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate or the second class to take
cognizance under sub-section (1) of such offences as are within his competence to inquire into or
try.
192. Making over of cases to Magistrate.- (1) Any Chief Judicial Magistrate may, after taking
cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate
subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may,
after taking cognizance of an offence, make over the case for inquiry or trial to such other
competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and
thereupon such Magistrate may hold the inquiry or trial.
53. Under the provisions of Section 190 Cr.P.C. the competent Magistrate may take cognizance of
any offence, subject to the provisions of Chapter XIV Cr.P.C., any Chief Judicial Magistrate is
empowered under Section 192 Cr.P.C. to transfer the case for inquiry after taking cognizance to a
competent Magistrate subordinate to him. Needless to point out that under the provisions of sub-
section (2) of Section 12 Cr.P.C., an Additional Chief Judicial Magistrate shall have all or any of
the powers of a Chief Judicial Magistrate under Cr.P.C. or under any other law for the time being in
force as the High Court may direct and the transferee Magistrate is under obligation to examine the
complaint and his witnesses and only thereafter to issue the process.

54. Chapter XV and XVI of Cr.P.C. contain various procedural provisions which are required to be
followed by the learned Magistrate for taking cognizance, issuing of process, dismissal of
complaint, supply of copies of documents and statements to the accused and commitment of the
case to the Court of Session when the offence is triable exclusively by that Court. Section 200
Cr.P.C. provides for examination of the complaint on oath and witnesses present, if any. The above
provision is quoted below:-

200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint

shall examine upon oath the complainant and the witnesses present, if any, and the substance of
such examination shall be reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the
complaint and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has
made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section
192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192
after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
55. Prior to amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the
Criminal Procedure (Amendment) Act, 2005, the learned Magistrate concerned, on receipt of a
complaint of an offence of which he was authorized to take cognizance or which had been made
over to him under Section 192 Cr.P.C., might if he thought it fit, 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 thought fit, for the purpose of deciding whether or not
there was sufficient ground for proceeding subject to the condition that no such direction for
investigation should be made where it appeared to the learned Magistrate that the offence
complained of was triable exclusively by the Court of Session; or where the complaint had not been
made by a Court, unless the complainant and the witnesses present (if any) had been examined
under Section 200 Cr.P.C.

Sub-section (1) of Section 202 Cr.P.C. has been amended by the Criminal Procedure (Amendment)
Act, 2005, inserting the following words;

and shall, in a case where the accused is residing at a place beyond the area in which he exercises
his jurisdiction.
The note of clause of the aforesaid amendment runs as follows: false complaints are filed against
persons residing at far of 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 by such other person as he thinks fit, for
finding out whether or not there was sufficient ground for proceeding against the accused.

The above amended provision came into force with effect from June 23, 2006 under notification
No.S.O.923(E) dated June 21, 2006.

56. The interpretation of the above amendment as to whether the same casts a mandatory duty upon
the learned Magistrate to conduct inquiry in sub-section (1) of Section 202 Cr.P.C. before issuing
process under Section 204 Cr.P.C. was under consideration of the Hon'ble Supreme Court in the
matter of National Bank of Oman (supra) and the finding of the Apex Court is quoted below:-

11. We are of the view that the High Court has correctly held that the above-mentioned amendment
was not noticed by the CJM, Ahmednagar. The CJM had failed to carry out any enquiry or order
investigation as contemplated under the amended Section 202 CrPC. Since it is an admitted fact that
the accused is residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the
view taken by the High Court.
12. All the same, the High Court instead of quashing the complaint, should have directed the
Magistrate to pass fresh orders following the provisions of Section 202 CrPC. Hence, we remit the
matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion
reached by the High Court that the bare allegations of cheating do not make out a case against the
accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after
complying with the procedure laid down in Section 202 CrPC, within two months from the date of
receipt of this order."
57. In Udai Shankar Awasthi (supra) the Hon'ble Supreme Court repeated and reiterated the same
view with regard to the above issue and the relevant portion of the above decision is quoted below:-

26. The Magistrate had issued summons without meeting the mandatory requirement of Section 202
Code of Criminal Procedure, though the Appellants were outside his territorial jurisdiction. The
provisions of Section 202 Code of Criminal Procedure were amended vide Amendment Act 2005,
making it mandatory to postpone the issue of process where the accused resides in an area beyond
the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to
protect innocent persons from being harassed by unscrupulous persons and making it obligatory
upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a
police officer, or by such other person as he thinks fit for the purpose of finding out whether or not,
there was sufficient ground for proceeding against the accused before issuing summons in such
cases. (See also: Shivjee Singh v. Nagendra Tiwary & Ors. MANU/SC/0433/2010 : AIR 2010 SC
2261; and National Bank of Oman v. Barakara Abdul Aziz & Anr. MANU/SC/1123/2012 : JT 2012
(12) SC 432)."
58. In the matter of Vijay Dhanuka & Ors. (supra) the Hon'ble Supreme Court repeated and
reiterated the above settled principles of law as under:-

11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a
case where the accused is residing at a place beyond the area in which he exercises his jurisdiction"
and thereafter to either inquire into the case by himself or direct an investigation to be made by a
police officer or by such other person as he thinks fit. In the face of it, what needs our determination
is as to whether in a case where the accused is residing at a place beyond the area in which the
Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words "and shall, in a case where the accused is residing at a place beyond the area in
which he exercises his jurisdiction" were inserted by Section 19 of the Code of Criminal Procedure
(Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the
opinion of the legislature, was essential as false complaints are filed against persons residing at far
off places in order to harass them. 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."
The use of the expression 'shall' prima facie makes the inquiry or the investigation, as the case may
be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking
into account the context or the intention, it can be held to be directory. The use of the word "shall"
in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the
intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by
unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression
"shall" and the background and the purpose for which the amendment has been brought, we have no
doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before
summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
13. In view of the decision of this Court in Udai Shankar Awasthi v. State of U.P., this point need
not detain us any further as in the said case, this Court has clearly held that the provision aforesaid
is mandatory.. . . .
59. Therefore, the above issue is no more res integra. According to the settled principles of law, the
amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal
Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside
the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous
persons from false complaints. The use of expression "shall", looking to the intention of the
legislature to the context, is mandatory before summons are issued against the accused living
beyond the territorial jurisdiction of the Magistrate.

60. It will not be out of context to consider the fact that the learned Single Judge while referring this
bunch of cases to us, placed reliance on the decisions of Shyamal Kumar Goswami & Anr. (supra)
heavily. The decision of Shyamal Kumar Goswami & Anr. (supra) is based on the decisions of
Rameshwar Jute Mills Ltd. vs. Sushil Kumar Daga & Ors., reported in 2009 (2) CHN 138 and
Biswanath Maheswari vs. Nabbharat Tea Processing Pvt. Ltd., reported in 2010 (2) CHN 257. We
are in disagreement with the above finding in view of the fact that the decision of Rameshwar Jute
Mills Ltd. (supra) has been set aside by the Hon'ble Supreme Court by an order dated April 2, 2013
passed in the matter of Umesh Verma vs. The Rameshwara Jute Mills Limited & Ors. (in re:-SLP
(Crl.) No.4432 of 2009). Further, in view of the decisions of the Hon'ble Supreme Court in the
matter of Shivjee Singh (supra), National Bank of Oman (supra), Udai Shankar Awasthi (supra),
and Vijay Dhanuka & Ors. (supra), the ratio laid down in the matter of Biswanath Maheswari
(supra) has been impliedly overruled.

B. The nature of enquiry to be undertaken by the learned Magistrate under sub-section (1) of
Section 202 Cr.P.C. in the matter of an accused who resides outside the territorial jurisdiction of the
Court concern :-

61. The term "inquiry" is defined under Sub-Section (g) of Section 2 Cr.P.C which is quoted
below:-

2.(g) "inquiry" means every inquiry other than trial, conducted under this court by a Magistrate or
court."

62. The above provision purports that every inquiry other than a trial conducted by the Magistrate
or court is an inquiry under Section 200 Cr.P.C. Examination of complaint only is necessary with
the option of examining the witness present, if any, under the inquiry under Section 202 Cr.P.C., the
witnesses are examined for the purpose of deciding whether or not there is sufficient ground for
proceeding against the accused.

63. In Chandra Deo Singh Vs. P. C. Bose reported in AIR 1963 SC 1433 a four Judges Bench of the
Hon'ble Supreme Court considered Section 202 of the old Criminal Procedure and held as under:-

8. . . . the object of the provisions of Section 202 (corresponding to present Section 202 of the
Code), was to enable the Magistrate to form an opinion as to whether process should be issued or
not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the
complaint and the consideration of the complainant's evidence on oath.
64. The Hon'ble Supreme Court while considering the objects underlined the provisions of Section
202 Cr.P.C. in Manharibhai Muljibhai Kakadia & Anr. (supra) and made the following
observations:-

"20. Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully
the allegations made in the complaint with a view to prevent a person named therein as accused
from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to
find out whether there is some material to support the allegations made in the complaint. The
Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and
also to bring to book a person or persons against whom the allegations have been made. To find out
the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an
investigation to be made by a police officer. The dismissal of the complaint under Section 203 is
without doubt a pre-issuance of process stage. The Code does not permit an accused person to
intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no
more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v.
Dattatraya Dulaji Ghadigaonker with reference to Section 202 of the Criminal Procedure Code,
1898 (corresponding to Section 202 of the present Code) held that the inquiry under Section 202
was for the purpose of ascertaining the truth or falsehood of the complaint, i.e. for ascertaining
whether there was evidence in support of the complaint so as to justify the issuance of process and
commencement of proceedings against the person concerned.
65. The amended provision of sub-section (1) of Section 202 Cr.P.C. came up for consideration of
the Hon'ble Supreme Court in the matter of National Bank of Oman (supra) and the following
observation made in the above decision is hereunder:-

9. The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.PC 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 202 CrPC is different from the investigation
contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is
sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is,
therefore, limited to the ascertainment of truth or falsehood of the allegations made in the
complaint:
(i) on the materials placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been
made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all
adverting to any defense that the accused may have.
66. In Vijay Dhanuka (supra), it has been held that under Section 200 Cr. P.C, examination of
complainant only is necessary with the option of examining the witnesses present, if any, whereas
in enquiry under Section 202 Cr. P.C., the witnesses are examined for the purpose of deciding
whether or not there is sufficient ground for proceeding against the accused. The relevant portion of
the above decision is set out below:

17. In view of our answer to the aforesaid question, the next question which falls for our
determination is whether the learned Magistrate before issuing summons has held the inquiry as
mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2 (g)
of the Code, the same reads as follows: "2. xxx xxx xxx (g) "inquiry" means every inquiry, other
than a trial, conducted under this Code by a Magistrate or Court; xxx xxx xxx". It is evident from
the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an
inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the
inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under
Section 200 of the Code, examination of the complainant only is necessary with the option of
examining the witnesses present, if any.
18. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient
ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of
the Code. In the present case, as we have stated earlier, the Magistrate has examined the
complainant on solemn affirmation and the two witnesses and only thereafter he had directed for
issuance of process. In view of what we have observed above, we do not find any error in the order
impugned. In the result, we do not find any merit in the appeals and the same are dismissed
accordingly.
67. In Vijay Dhanuka (supra) the aforesaid principle has been repeated and reiterated in the
observation that under Section 200 Cr.P.C. the examining of complainant only is necessary with the
option of examining the witnesses present, if any. Though no specific mode or manner of enquiry is
provided under Section 202 Cr.P.C., in an enquiry under Section 202 Cr. P.C., the witnesses are
examined for the purpose of deciding whether or not there is sufficient ground of proceeding
against the accused. The relevant portion of the above decision is quoted below:

14. In view of our answer to the aforesaid question, the next question which falls for our
determination is whether the learned Magistrate before issuing summons has held the inquiry as
mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2 (g)
of the Code, the same reads as follows:
2. (g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or
court, It is evident from the aforesaid provision, every inquiry other than a trial conducted by the
Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under
Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are
examined whereas under Section 200 of the Code, examination of the complainant only is
necessary with the option of examining the witnesses present, if any. This exercise by the
Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding
against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.
15. In the present case, as we have stated earlier, the Magistrate has examined the complainant on
solemn affirmation and the two witnesses and only thereafter he had directed for issuance of
process.
68. Therefore, keeping in mind the object sought to be achieved by way of amendment of sub-
section (1) of Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal
Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against
such persons who reside at far of places with a view to save them for unnecessary harassment and
the Learned Magistrate concerned is under obligation to find out if there is any matter which calls
for investigation by Criminal Court in the light of the settled principles of law holding an enquiry
by way of examining the witnesses produced by the complainant or direct an investigation made by
a police officer as discussed hereinabove.

C. Whether non-compliance of such enquiry in terms of Sub-Section (1) of Section 202 (as
amended) under Section 19 of the Criminal Procedure (Amendment) Act, 2005 will invalidate or
vitiate the order of process so issued?

69. It has already been settled that when an order of issuing summon is issued by a learned
Magistrate against an accused who is residing at a place beyond the area in which he exercises his
jurisdiction without conducting an enquiry under Section 202 Cr.P.C., the matter is required to be
remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima
facie conclusion reached by the Appellate Court. Reference may be made to the decision of
National Bank of Oman (supra) and the relevant portion of the above decision is quoted below:-

12. All the same, the High Court instead of quashing the complaint, should have directed the
Magistrate to pass fresh orders following the provisions of Section 202 CrPC. Hence, we remit the
matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion
reached by the High Court that the bare allegations of cheating do not make out a case against the
accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after
complying with the procedure laid down in Section 202 CrPC, within two months from the date of
receipt of this order."
D. Whether objections with regard to non-compliance of the amended provisions of sub-section (1)
of Section 202 Cr.P.C. as incorporated by virtue of Section 19 of the Criminal Procedure
(Amendment) Act, 2005 may be raised at the initial stage only or after much deliberation as well?

70. Chapter XXXV Cr.P.C. deals with the procedure relating to irregular proceedings in particular
Section 465 Cr.P.C. of the above Chapter deals with the finding or sentence when reversible by
reason of error, omission or irregularity which is quoted below:-

465. Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to
the provisions hereinabove contained, no finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of
any error, omission or irregularity in the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial or in any inquiry or other proceedings under
this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of
that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or
any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the
Court shall have regard to the fact whether the objection could and should have been raised at an
earlier stage in the proceedings.
71. Section 472 of the above Chapter deals with continuing offence which is quoted below:-

472. Continuing offence. - In the case of a continuing offence, a fresh period of limitation shall
begin to run at every moment of the time during which the offence continues.
72. As discussed hereinabove, the satisfaction of the learned Magistrate concerned that there is a
sufficient ground for proceeding with the complaint either by way of examination of complainant
and the witnesses or by the enquiry contemplated under Section 202 Cr.P.C., is a condition
precedent for issuing process under Section 204 Cr.P.C. It is a preliminary stage and the stage of
hearing the accused would only arise at a subsequent stage provided for in the later provisions of
the Cr.P.C., or in other words, up to the stage of complying with the provisions of Section 204
Cr.P.C. the accused has no role to play. The question of making an application by the accused
before the Learned Magistrate concerned for dismissal of the complaint under Section 203 Cr.P.C.
or a reconsideration of the material available on record is impermissible on receipt of summons
approaching the Court for the reason that by then Section 203 is over and the learned Magistrate
concerned has proceeded further to Section 204 Cr.P.C.

73. In Adalat Prasad vs. Rooplal Jindal & Ors., reported in (2004) 7 SCC 338, a three Judges Bench
of the Hon'ble Supreme Court took into consideration the provisions of Sections 200, 202 and 204
Cr.P.C. for explaining the above provisions. The Apex Court observed as follows:-

15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being
any allegation against the accused or any material implicating the accused or in contravention of
provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief
an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because
the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of
any review power or inherent power with the subordinate criminal courts, the remedy lies in
invoking Section 482 of the Code.
74. In view of the above settled principles of law the relief an aggrieved accused can obtain is to file
an application for revision under Section 482 Cr.P.C.
75. In the matter of Gita Ram (supra) it was observed by the Hon'ble Supreme Court that the object
underlined in Section 465 Cr.P.C. is that if on a technical ground any party to the criminal
proceedings is aggrieved he must raise the objection thereof at the earliest stage; if he did not raise
it at the earliest stage he cannot be heard on that aspect after the whole trial is over. The relevant
portion of the above decision is quoted below:-

6. We are distressed to note that learned Single Judge was not told by the government advocate of
the fallout of such a view, if taken by the Single Judge, that it means all the witnesses once
examined in full should be called back again, and the whole chief-examination, cross-examination,
re-examination and questioning of the accused under Section 313 of the Code, hearing arguments,
then examination of defense witnesses further, again final arguments to be heard and preparation of
judgment once again. The very object underlined in Section 465 of the Code is that if on any
technical ground any party to the criminal proceedings is aggrieved he must raise the objection
thereof at the earliest stage. If he did not raise it at the earliest stage he cannot be heard on that
aspect after the whole trial is over.
76. While dealing with the provisions of question of delay in approaching the Court in a criminal
proceeding for a rightful cause, or even for the violation of the fundamental rights in the matter of
Udai Shankar Awasthi (supra) it has been observed by the Hon'ble Supreme Court that approaching
the Court at a belated stage has always been considered as a good ground for its rejection at the
threshold. The relevant portion of the above decision is quoted below:-

28. Approaching the court at a belated stage for a rightful cause, or even for the violation of the
fundamental rights, has always been considered as a good ground for its rejection at the threshold.
The ground taken by the learned Counsel for Respondent No.2 that the cause of action arose on
20.10.2009 and 5.11.2009, as the Appellants refused to return money and other materials, articles
and record, does not have substance worth consideration. In case a representation is made by the
person aggrieved and the same is rejected by the competent statutory authority, and such and order
is communicated to the person aggrieved, making repeated representations will not enable the party
to explain the delay.
77. In view of the above we have no hesitation to arrive at a conclusion that the first occasion for an
aggrieved accused to raise objection for issuing summon against him comes after the provision of
Section 204 is invoked. Since Cr.P.C. does not contemplate a review of an order passed by the
learned Magistrate concerned taking cognizance of an offence issuing process without there being
any allegation against accused or any material implicating the accused or any contravention of the
provisions of Sections 200 and 202, the remedy lies in invoking Section 482 Cr.P.C. However,
keeping in mind the object underlined in Section 465 Cr.P.C. that if on any technical ground any
party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest
stage, we hold that in the event of failure on the part of an aggrieved party to raise objection at the
earliest stage, he cannot be heard on that aspect after the whole trial is over or even at a later stage
after his participation in the trial. E. The scope of application of the amended provision of Sub-
Section (1) of Section 202 Cr.P.C. as enacted under Section 19 of the Criminal Procedure
(Amendment) Act, 2005, in case of offences punishable under Sections 138/141 of the Negotiable
Instruments Act, 1881 :-

Chapter XVII was introduced in the Negotiable Act, 1981 by the Banking, Public Financial
Institutions and Negotiable Instruments Law (Amendment) Act, 1988, with the object of promoting
the efficacy of banking operation and for ensuring credibility in business transactions through
banks. The above Chapter contained Sections 138 to 142.

Section 138 of the said Act, 1881, deals with dishonour of cheque for insufficiency, etc., of funds in
the account. Section 139 of the above Act speaks of presumption in favour of the holder. According
to the provisions of Section 140 of the above Act, it should not be a defense in prosecution for an
offence under Section 138 that the drawer had no reason to believe when he had issued the cheque
that the cheque might be dishonoured on presentment for the reasons stated in the above Section.
Section 141 of the above Act deals with offence by the companies. Section 142 of the above Act
deals with procedure for taking cognizance of offences under the above Act notwithstanding
anything contained in the Code of Criminal Procedure, 1973.

78. In Goaplast Pvt. Ltd. vs. Shri Chico Ursula D'Souza & Anr., reported in (2003) 3 SCC 232, the
Hon'ble Supreme Court observed that by countermanding payment of post-dated cheque, a party
should not be allowed to get away from the penal provision of Section 138 of the said Act, 1881
taking into consideration the presumption that a cheque is issued in discharge of any debt or other
liability, which could be rebutted by adducing evidence and the burden of proof being on the person
who wants to rebut the presumption, coupled with the object of Chapter XVII of the said Act, 1881.
The Apex Court made further observation to the effect that once a cheque is issued by a drawer a
presumption under Section 139 must follow and merely because the drawer issued notice to the
drawee or to the bank for stoppage of payment, it would not preclude an action under Section 138
of the Act by the drawee or the holder of the cheque in due course. The relevant portion of the
above decision is quoted below:-

6. . . . . Thus it has to be presumed that a cheque is issued in discharge of any debt or other liability.
The presumption can be rebutted by adducing evidence and the burden of proof is on the person
who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of
the Act which is to promote the efficacy of banking operation and to ensure credibility in business
transactions through banks persuades us to take a view that by countermanding payment of post-
dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of
the Act. A contrary view should render Section 138 a dead letter and will provide a handle to
persons trying to avoid payment under legal obligations undertaken by them through their own acts
which in other words can be said to be taking advantage of one's own wrong.
If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the
same against a debt or liability, a drawer will easily avoid penal consequences under Section 138.
Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely
because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not
preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due
course . . . .
79. In Hiten P. Dalal vs. Bratindranath Banerjee, reported in (2001) 6 SCC 16, the above view was
repeated and reiterated that a conjoint reading of Sections 138 and 139 of the said Act, 1881 speaks
of presumption in favour of liability of the drawer of the cheques for the amounts for which the
cheques are drawn and it is obligatory on the Court to raise this presumption in every case where
the factual basis for raising of presumption had been established. According to the Apex Court, this
introduced an exception to the general rule as to the burden of proof in criminal cases shifting the
onus on to the accused and the relevant portion of the above decision is quoted below:-

22. Because both Sections 138 and 139 require that the Court 'shall presume' the liability of the
drawer of the cheques for the amounts for which the cheques are drawn, ... it is obligatory on the
court to raise this presumption in every case where the factual basis for the raising of the
presumption had been established. 'It introduces an exception to the general rule as to the burden of
proof in criminal cases and shifts the onus on to the accused.' ... Such a presumption is a
presumption of law, as distinguished from a presumption of fact which describes provisions by
which the court 'may presume' a certain state of affairs. Presumptions are rules of evidence and do
not conflict with the presumption of innocence, because by the latter, all that is meant is that the
prosecution is obliged to prove the case against the accused beyond reasonable doubt. The
obligation on the prosecution may be discharged with the help of presumptions of law or fact unless
the accused adduces evidence showing the reasonable possibility of the non-existence of the
presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no
discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the
person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is
said to be proved when, 'after considering the matters before it, the court either believes it to exist,
or considers its existence so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.' Therefore, the rebuttal does not have to be
conclusively established but such evidence must be adduced before the court in support of the
defence that the Court must either believe the defence to exist or consider its existence to be
reasonably probable, the standard of reasonability being that of the 'prudent man'.
The above view has been repeated and reiterated by the Hon'ble Supreme Court in Rangappa vs. Sri
Mohan, reported in (2010) 11 SCC

441.
80. In Dashrath Rupsingh Rathod (supra) the Hon'ble Justice Vikramjit Sen observed that the
Parliament consciously introduced Chapter XVII by virtue of the Banking, Public Financial
Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 for the purpose of
converting civil liability into criminal content, inter alia, by deeming fiction of culpability in terms
of the pandect comprising Sections 138 and succeeding sections. The relevant portion of the above
decision is quoted below:-

15.2. We have undertaken this succinct study mindful of the fact that Parliamentary debates have a
limited part to play in interpretation of statutes, the presumption being that legislators have the
experience, expertise and language skills to draft laws which unambiguously convey their
intentions and expectations for the enactments. What is palpably clear is that Parliament was aware
that they were converting civil liability into criminal content inter alia by the deeming fiction of
culpability in terms of the pandect comprising Section 138 and the succeeding sections, which
severely curtail defenses to prosecution. Parliament was also aware that the offence of cheating, etc.
already envisaged in IPC, continued to be available.
81. In Pankajbhai Nagjibhai Patel vs. The State of Gujarat & Anr., reported in (2001) 2 SCC 595,
the Hon'ble Supreme Court took into considerations the effect of non-obstante clause in Section 142
of the said Act, 1881. According to the Apex Court, the above non-obstante clause is intended to
operate only in respect of three following aspects and nothing more.

(i) Under the Code a Magistrate can take cognizance of an offence either upon receiving a
complaint or upon a police report, or upon receiving information from any person, or upon his own
knowledge except in cases differently indicated in Chapter XIV of Cr.P.C. unlike Section 142 of the
said Act, 1881 that in so far as the offence under Section 138 of the said Act, 1881 is concerned no
Court should take cognizance except upon a complaint made by the payee or the holder in due
course of the cheque;

(ii) Under Cr.P.C. a complaint could be made at any time subject to the provisions of Chapter
XXXVI. However, the offence under Section 138 of the said Act, 1881 should be made within one
month of the cause of action; and

(iii) Under Article 511 of the First Schedule of Cr.P.C., if the offence is punishable with
imprisonment for less than 3 years or with fine only under any enactment (other than Indian Penal
Code) such offence could be tried by a Magistrate. Normally, Section 138 of the Negotiable
Instrument Act, which is punishable with a maximum sentence of imprisonment for one year would
have fallen within the scope of the above Article. But under Section 142 of the said Act, 1881 no
Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class should try
an offence under Section 138 of the said Act, 1881.
82. It will not be out of context to observe that the non-obstante clause, when it refers to Cr.P.C.
only excludes the 'oral complaint' of the definition under Section 2 (d) of Cr.P.C. However, the
learned Magistrate concerned is required to follow the procedure under Section 200 of the Code
once he has taken the complaint of the payee/holder in due course and recorded the statement of the
complainant and such other witnesses as present at the said date. Reference may be made to the
decision of Indra Kumar Patodia & Anr. (supra) and the relevant portion of the above decision is
quoted below:-

18. It is clear that the non obstante clause has to be given restricted meaning and when the section
containing the said clause does not refer to any particular provisions which it intends to override but
refers to the provisions of the statute generally, it is not permissible to hold that it excludes the
whole Act and stands all alone by itself. In other words, there requires to be a determination as to
which provisions answers the description and which does not. While interpreting the non obstante
clause, the Court is required to find out the extent to which the legislature intended to do so and the
context in which the non obstante clause is used. We have already referred to the definition of
complaint as stated in Section 2(d) of the Code which provides that the same needs to be in oral or
in writing. The non obstante clause, when it refers to the Code only excludes the oral part in such
definition.
83. By virtue of the Banking, Public Financial Institutions and Negotiable Instruments
(Amendment) Act, 2015 (Act 26 of 2015), sub-section (2) of Section 142 and Section 142A have
been inserted in the said Act, 1981 which came into force with effect from June 15, 2015. With
regard to insertion of Section 143 in the said Act, 1881 it was observed by the Hon'ble Supreme
Court in J.V. Baharuni & Anr. (supra) that the learned Magistrate concerned has the discretion
under Section 143 of the said Act, 1881, either to follow a summary trial or summons trial adhering
to the guidelines prescribed therein and the relevant portion of the above decision is quoted below:-

60. However, to summarise and answer the issues raised herein, the following directions are issued
for the courts seized of with similar cases:
60.1. All the subordinate courts must make an endeavour to expedite the hearing of cases in a time-
bound manner which in turn will restore the confidence of the common man in the justice-delivery
system. When law expects something to be done within prescribed time-limit, some efforts are
required to be made to obey the mandate of law.
60.2. The learned Magistrate has the discretion under Section 143 of the NI Act either to follow a
summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should
record the reasons after hearing the parties and proceed with the trial in the manner provided under
the second proviso to Section 143 of the NI Act. Such reasons should necessarily be recorded by the
trial court so that further litigation arraigning the mode of trial can be avoided.
60.3. The learned Judicial Magistrate should make all possible attempts to encourage compounding
of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the
compensatory aspect of remedy must be given priority over the punitive aspect.
60.4. All the subordinate courts should follow the directives of the Supreme Court issued in several
cases scrupulously for effective conduct of trials and speedy disposal of cases.
60.5. Remitting the matter for de novo trial should be exercised as a last resort and should be used
sparingly when there is grave miscarriage of justice in the light of illegality, irregularity,
incompetence or any other defect which cannot be cured at an appellate stage. The appellate court
should be very cautious and exercise the discretion judiciously while remanding the matter for de
novo trial.
60.6. While examining the nature of the trial conducted by the trial court for the purpose of
determining whether it was summary trial or summons trial, the primary and predominant test to be
adopted by the appellate court should be whether it was only the substance of the evidence that was
recorded or whether the complete record of the deposition of the witness in their chief-
examination, cross-examination and re-examination in verbatim was faithfully placed on record.
The appellate court has to go through each and every minute detail of the trial court record and then
examine the same independently and thoroughly to reach at a just and reasonable conclusion.
84. While interpreting the amended provisions of Section 145 of the said Act, 1881 in Radhey
Shyam Garg (supra), the Hon'ble Supreme Court was pleased to take into consideration the non-
obstante clause to arrive at a finding that the provisions of Code of Criminal Procedure, 1973 are
not attracted. Further taking into consideration the term "may" in sub-section (2) of Section 145 and
the term "shall" in sub-section (2) thereof using the term "shall", the Apex Court came to a finding
that the terms have been used to point out the discretionary power of the Court conferred upon him
by it by reason thereof. However, the Court has no other option but to summon and examine any
person who has given evidence on affidavit as to the facts contained therein if an application is filed
either by the prosecution or the accused. It has also been observed in the above decision that the
words "examine any person giving evidence on affidavit as to the facts contained therein", in the
event, the deponent is summoned by the Court in terms of sub-section (2) of Section 145 of the
Act" would mean for the purpose of cross-examination and the relevant portions of the above
decision are quoted below:-

"10. Section 145 of the Act reads as under:

"145. Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and
may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding
under the said Code.
(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused,
summon and examine any person giving evidence on affidavit as to the facts contained therein."
It contains a non-obstante clause. The provisions of the Code of Criminal Procedure, 1973 are, thus,
not attracted. The Court, subject to just exceptions, may allow the complainant to give evidence by
way of an affidavit. Such an evidence by way of an affidavit had been made admissible in evidence
in any enquiry, trial or other proceedings under the Code. Whereas sub-section (1) of Section 145
uses the term "may", sub-section (2) thereof uses the term "shall". The first part of the
aforementioned provision must be read with sub- section (1) of Section 145. It, therefore, merely
points out to the discretionary power of the court conferred upon it by reason thereof. The court,
however, has no other option but to summon and examine any person who has given evidence on
affidavit as to the facts contained therein if an application is filed either by the prosecution or the
accused. Section 145 must be read reasonably. Section 296 of the Code of Criminal Procedure
although refers to an evidence of a formal character, no doubt contains a pari materia provision.

.........

19. If an affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an
evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit
to examine himself with regard to the contents thereof once over again. He may be cross-examined
and upon completion of his evidence, he may be re-examined. Thus, the words "examine any
person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is
summoned by the court in terms of sub-section (2) of Section 145 of the Act", in our opinion, would
mean for the purpose of cross- examination. The provision seeks to attend a salutary purpose. The
statements of objects and reasons for enacting the said provision, inter alia, reads as under:

"4. Keeping in view of the recommendations of the Standing Committee on Finance and other
representations, it has been decided to bring out, inter alia, the following amendments in the
Negotiable Instruments Act, 1881, namely-

(i) to (iii) * * *

(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant;

(v) * * *

(vi) to provide for summary trial of the cases under the Act with a view to speeding up disposal of
cases;"

20. The object of enactment of the said provision is for the purpose of expedition of the trial. A
criminal trial even otherwise is required to be expeditiously held. We, therefore, do not find any
justification for arriving at a finding that a witness can again be summoned for his examination in
chief in the court despite affirming affidavit in that behalf."
Reference may also be made to the decision of Mandvi Cooperative Bank Limited (supra).

85. Under the provisions of Section 146 of the said Act, 1881 the Bank's slip or memo having
thereon the official mark denoting that a cheque has been dishonoured, presumes the fact of
dishonoured cheque, unless and until such fact is disproved. Section 147 of the said Act, 1881
contains that every offence punishable under the said Act, 1881 should be compoundable
notwithstanding anything contained in Cr.P.C.

86. According to the statutory explanation, for the purpose of Clause (a) where a cheque is
delivered for collection at any branch of the bank of the payee or holder in due course, then the
cheque should be deemed to have been delivered to the branch of the bank in which the payee or
holder in due course, as the case may be, maintains the account.

87. While considering the scheme of the prosecution in punishing under Section 138 of the said
Act, 1881, the Apex Court observed in the matter of N. Harihara Krishnan (supra) that the above
scheme is different from the scheme of the Cr.P.C. No procedure for investigation is contemplated
under the scheme. The proceeding is to be initiated only on the basis of a written complaint made
by the payee of a cheque containing the factual allegations constituting each of the ingredients of
the offence under Section 138 of the said Act, 1881 as follows:-

(i) That a person drew a cheque from an account maintained by him with the banker;

(ii) That such a cheque when presented to the bank is returned by the bank is unpaid;

(iii) That such a cheque was presented to the bank within a period of six months from the date it
was drawn or within the period its validity whichever is earlier;

(iv) That the payee demanded in writing from drawer of the cheque the payment of the amount of
money due under the cheque; and

(v) Such a notice of payment is made within a period of 30 days from the date of receipt of the
information by the payee from the bank regarding the return of the cheque as unpaid. According to
the Hon'ble Supreme Court, the only other ingredient which is required to be proved to establish the
commission of offence under Section 138 is that inspite of the demand notice, the drawer of the
cheque failed to make the payment within a period of 15 days from the date of receipt of the
demand.

The relevant portion of the above decision is quoted below:-

23. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from
the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure
for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a
written complaint made by the payee of a cheque. Obviously such complaints must contain the
factual allegations constituting each of the ingredients of the offence under Section 138. Those
ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker;
(2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a
cheque was presented to the bank within a period of six months from the date it was drawn or
within the period of its validity whichever is earlier; (4) that the payee demanded in writing from
the drawer of the cheque the payment of the amount of money due under the cheque to payee; and
(5) such a notice of payment is made within a period of 30 days from the date of the receipt of the
information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious
from the scheme of Section 138 that each one of the ingredients flows from a document which
evidences the existence of such an ingredient. The only other ingredient which is required to be
proved to establish the commission of an offence under Section 138 is that inspite of the demand
notice referred to above, the drawer of the cheque failed to make the payment within a period of 15
days from the date of the receipt of the demand. A fact which the complainant can only assert but
not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact
made the payment pursuant to the demand.

24. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the
offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is
necessarily required to be known to the complainant (payee) and needs investigation and would not
normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very
fact. The other facts required to be proved for securing the punishment of the person who drew a
cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each
one of the steps contemplated under Section 138 of THE ACT before initiating prosecution.
Because it is already held by this Court that failure to comply with any one of the steps
contemplated under Section 138 would not provide "cause of action for prosecution". Therefore, in
the context of a prosecution under Section 138, the concept of taking cognizance of the offence but
not the offender is not appropriate. Unless the complaint contains all the necessary factual
allegations constituting each of the ingredients of the offence under Section 138, the Court cannot
take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of
the factual allegations which a complaint is required to contain. Otherwise in the absence of any
authority of law to investigate the offence under Section 138, there would be no person against
whom a Court can proceed. There cannot be a prosecution without an accused. The offence under
Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the
provisions dealing with taking cognizance contained in the CrPC should give way to the procedure
prescribed under Section 142.Hence the opening of non-obstante clause under Section 142. It must
also be remembered that Section 142 does not either contemplate a report to the police or authorise
the Court taking cognizance to direct the police to investigate into the complaint.

88. It is necessary to take into consideration the vicarious liability of person (s) in charge of and
responsible for conduct of business of a company in case of commission of offence of that company
under Section 138 of the said Act, 1881. In order to find out the answer to the above question the
provisions of Section 141 of the said Act, 1881 is required to be taken into consideration and the
same is quoted below:-

141. Offences by companies.- (1) If the person committing an offence under section 138 is a
company, every person who, at the time the offence was committed, was in charge of, and was
responsible to the company for the conduct of the business of the company, as well as the company,
shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished
accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if
he proves that the offence was committed without his knowledge, or that he had exercised all due
diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his
holding any office or employment in the Central Government or State Government or a financial
corporation owned or controlled by the Central Government or the State Government, as the case
may be, he shall not be liable for prosecution under this Chapter.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has
been committed by a company and it is proved that attributable to, any neglect on the part of, any
director, manager, secretary or other officer of the company, such director, manager, secretary or
other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.
Explanation.- For the purposes of this section,-
(a) "company" means anybody corporate and includes a firm or other association of individuals;
and
(b) "director", in relation to a firm, means a partner in the firm.
89. In Anil Hada vs. Indian Acrylic Limited, reported in (2000) 1 SCC 1, the above issue was under
consideration of the Hon'ble Supreme Court. According to the Apex Court, three categories of
persons can be fastened with penal liability through legal fiction envisaged in Sections 138 read
with the provisions of Section 141 of the said Act, 1881 as follows:-

(i) The company which committed the offence,

(ii) Everyone who was in charge of and was responsible for business of the company,

(iii) Any other person who is a director or a manager or a secretary or officer of the company, with
whose connivance or due to whose neglect the company has committed the offence.

The relevant portion of the above decision is quoted below:-

"10. Three categories of persons can be discerned from the said provision who are brought within
the purview of the penal liability through the legal fiction envisaged in the section. They are: (1)
The company which committed the offence, (2) Everyone who was in charge of and was
responsible for the business of the company, (3) any other person who is a director or a manager or
a secretary or officer of the company, with whose connivance or due to whose neglect the company
has committed the offence.
11. Normally an offence can be committed by human beings who are natural persons. Such offence
can be tried according to the procedure established by law. But there are offences which could be
attributed to juristic person also. If the drawer of a cheque happens to be a juristic person like a
body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no
scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the
Act. In the expanded ambit of the word "company" even firms or any other associations of persons
are included and as a necessary adjunct thereof a partner of the firm is treated as director of that
company.
12. Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a
human being or a body corporate or even firm, prosecution proceedings can be initiated against
such drawer. In this context the phrase "as well as" used in Sub-section (1) of Section 141 of the
Act has some importance. The said phrase would embroil the persons mentioned in the first
category within the tentacles of the offence on a par with the offending company. Similarly the
words "shall also" in Sub-section (2) are capable of bringing the third category persons additionally
within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the
company is the drawer of the cheque such company is the principal offender under Section 138 of
the Act and the remaining persons are made offenders by virtue of the legal fiction created by the
legislature as per the section. Hence the actual offence should have been committed by the
company, and then alone the other two categories of persons can also become liable for the offence.
90. While dealing with the said Act, 1881, in relation to liability of a person connected with a
company, a three Judges Bench of the Hon'ble Supreme Court in the matter of S.M.S.
Pharmceuticals Ltd. (supra) arrived at a conclusion that when there is a departure from the rule in
criminal law against vicarious liability a clear case should be spelt out in the complaint against the
person sought to be made liable. Or in other words, where the respondent falls within the
parameters of Section 141, has to be spelt out. According to the finding of the Apex Court in the
above decision, a complaint has to be examined by the learned Magistrate and he has to be satisfied
that there are averments which bring the case within the purview of Section 141 of the said Act,
1881, only then he would issue the process. On the basis of the above finding the Apex Court
further undertook the question of requirement of averments in a complaint which has to be
considered on the basis of the provisions contained in Sections 138 and 141 of the said Act, 1881
read in the light of the power of a Magistrate referred to in Sections 200 and 204 of the Code of
Criminal Procedure and arrived at a further conclusion that a Magistrate has to consider the
complaint before issuing process and he has the power to reject it at the threshold suggests that a
complaint should make out a case for issue of process and keeping in mind the guideline as
prescribed therein. The necessary portions of the above decision are quoted below:-
5. Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a
process. It uses the words "after considering" and "the Magistrate is of opinion that there is no
sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to
a complaint at the initial stage itself and see whether a case is made out against the accused persons
before issuing process to them on the basis of the complaint. For applying his mind and forming an
opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima
facie case to proceed. This, in other words, means that a complaint must contain material to enable
the Magistrate to make up his mind for issuing process. If this were not the requirement,
consequences could be far reaching. If a Magistrate had to issue process in every case, the burden of
work before the Magistrate as well as the harassment caused to the respondents to whom process is
issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion
of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The
words "sufficient ground for proceeding" again suggest that ground should be made out in the
complaint for proceeding against the respondent. It is settled law that at the time of issuing of the
process the Magistrate is required to see only the allegations in the complaint and where allegations
in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is
liable to be dismissed.

6. As the points of reference will show, the question for consideration is what should be the
averments in a complaint under Sections 138 and 141. Process on a complaint under Section 138
starts normally on basis of a written complaint which is placed before a Magistrate.The Magistrate
considers the complaint as per provisions of Sections 200 to 204 of the Code of Criminal
Procedure. The question of requirement of averments in a complaint has to be considered on the
basis of provisions contained in Sections 138 and 141 of the Negotiable Instruments Act read in the
light of powers of a Magistrate referred to in Sections 200 to 204 of the Code of Criminal
Procedure. The fact that a Magistrate has to consider the complaint before issuing process and he
has power to reject it at the threshold, suggests that a complaint should make out a case for issue of
process.

.......

18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be
contained in a complaint before a person can be subjected to criminal process. A liability under
Section 141 of the Act is sought to be fastened vicariously on a person connected with a company,
the principal accused being the company itself. It is a departure from the rule in criminal law
against vicarious liability. A clear case should be spelled out in the complaint against the person
sought to be made liable. Section 141 of the Act contains the requirements for making a person
liable under the said provision. That respondent falls within the parameters of Section 141 has to be
spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of
averments contained therein. If the Magistrate is satisfied that there are averments which bring the
case within Section 141, he would issue the process. We have seen that merely being described as a
director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-
director can be liable under Section 141 of the Act. The averments in the complaint would also
serve the purpose that the person sought to be made liable would know what is the case which is
alleged against him. This will enable him to meet the case at the trial.

19. In view of the above discussion, our answers to the questions posed in the reference are as
under:

(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence
was committed, the person accused was in charge of, and responsible for the conduct of business of
the company. This averment is an essential requirement of Section 141 and has to be made in a
complaint. Without this averment being made in a complaint, the requirements of Section 141
cannot be said to be satisfied.

(b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a
company is not sufficient to make the person liable under Section 141 of the Act. A director in a
company cannot be deemed to be in charge of and responsible to the company for conduct of its
business. The requirement of Section 141 is that the person sought to be made liable should be in
charge of and responsible for the conduct of the business of the company at the relevant time. This
has to be averred as a fact as there is no deemed liability of a director in such cases.

(c) The answer to Question (c) has to be in affirmative. The question notes that the managing
director or joint managing director would be admittedly in charge of the company and responsible
to the company for conduct of its business. When that is so, holders of such positions in a company
become liable under Section 141 of the Act. By virtue of the office they hold as managing director
or joint managing director, these persons are in charge of and responsible for the conduct of
business of the company. Therefore, they get covered under Section 141. So far as the signatory of
a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and
will be covered under sub-section (2) of Section 141.

91. Subsequently, while the Hon'ble Supreme Court dealing with the above issue in the matter of
Standard Chartered Bank (supra) observed that it is the settled law that at the time of issuing
process, the learned Magistrate concerned is to see only the allegations in the complaint and where
the allegations in the complaint or the charge-sheet do not constitute an offence against the person,
the same is liable to be dismissed. The relevant portion of the above decision is quoted below:-

14. The three-Judge Bench in S.M.S. Pharma I case referred to Sections 138 and 141 of the Act,
Sections 203 and 204 CrPC and observed (SCC p. 96, para 5) that a complaint must contain
material to enable the Magistrate to make up his mind for issuing process and if this were not the
requirement, consequences would be far-reaching. If a Magistrate has to issue process in every case,
the burden of work before the Magistrate as well as the harassment caused to the respondents to
whom process has to be issued would be tremendous. It has been observed therein that Section 204
CrPC commences with the words "if in the opinion of the Magistrate taking cognizance of an
offence there is sufficient ground for proceeding" and that apart, the words "sufficient ground for
proceeding" again suggest that ground should be made out in the complaint for proceeding against
the respondent. The three-Judge Bench has ruled that it is settled law that at the time of issuing of
the process, the Magistrate is required to see only the allegations in the complaint and where the
allegations in the complaint or the charge-sheet do not constitute an offence against a person, the
complaint is liable to be dismissed.
92. The same view was repeated and reiterated once again by the Hon'ble Supreme Court in the
matter of Tamil Nadu News Print and Papers Ltd. vs. D. Karunakar & Ors., reported in (2016) 6
SCC 78.

93. Applying the doctrine of pith and substance to the provisions of Section 138 to Section 147 of
the said Act, 1881, keeping in mind the interpretations of the aforesaid Sections by the Hon'ble
Supreme Court as discussed hereinabove, we find the following salient features in the above
provisions:

(i) The complaint is filed under Section 138 of the said Act, 1881 furnishing best possible evidence.

(ii) Unimpeachable documents are produced at the initial stage and are marked exhibits.

(iii) Cause of issuance of cheque is backed by presumption under Section 139 of the said Act, 1881.

(iv) On production of original evidence at initial stage, scope of subsequent improvement is

minimized at the instance of the complaint.

(v) Since the best set of evidence is available before the learned Magistrate, he is not making initial
enquiry or in other words it is not a roving enquiry into the pros and cons of the matter.

(vi) An exhaustive process has already been prescribed for filing a complaint under Section 138 of
the said Act, 1881 furnishing adequate information to form a prima facie opinion by the learned
Magistrate at the pre-summoning stage.

(vii) For the above purpose the investigation by police is kept outside the area and summons trial is
introduced.

94. In a recent judgment dated October 5, 2017, delivered by the Hon'ble Supreme Court in M/S.
Meters and Instruments Private Limited & Anr. etc. (in re: Criminal Appeal Nos.1731, 1732, 1733
of 2017), which dealing with the issue of compounding an offence committed under the said Act,
1881, observed as follows:-

18. (V) Since evidence of the complaint can be given on affidavit, subject to the Court summoning
the person giving affidavit and examining him and the bank's slip being prima facie evidence of the
dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence.
Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The
manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme
is to follow summary procedure except where exercise of power under second proviso to Section
143 becomes necessary, where sentence of one year may have to be awarded and compensation
under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the
financial capacity and the conduct of the accused or any other circumstances.
95. In view of the above and taking into consideration the non-obstante clauses used in Sections
142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by
the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we
arrive at an irresistible conclusion that the legislature has taken care of the interest of the
complainant and the accused by exempting the complainant from facing the general rigors of
Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the
Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the
complainant to produce best possible stage at the pre- summon stage.

96. Necessary to point out that in view of the law laid down by the Apex Court in the case of
Bhaskar Industries Ltd. -v- Bhiwani Denim & Apparels Ltd. And Others, reported in (2001) 7 SCC
401, the accused in case under Negotiable Instruments is exempted from appearing in person on
receipt of the summon.

97. It is profitable to take into consideration Sub-Section (2) of Section 4 of the Cr.P.C. that
provides that all offences under any law other than the Cr.P.C. shall be investigated, inquired into,
tried, and otherwise dealt with according to the same provisions, subject to any enactment for the
time being in force regulating the manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.

98. In view of the observations and discussions made hereinabove, the decisions of Indian Bank of
Association (supra), Indra Kumar Patodia (supra), Priyanka Srivastava & Anr. (supra), Rangappa
(supra) do not help Mr. Ayan Bhattacharya, leaned Counsel appearing in a number of cases for the
petitioners and in some other cases for the private opposite parties.

99. In view of the above, we find that in cases falling under Section 138 read with Section 141 of
the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section
202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the
learned Magistrate concerned.

100. To sum up, the reference made by the Learned Single Judge on the five issues are answered as
follows:-

I. According to the settled principles of law, the amendment of sub-

section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal Procedure (Amendment)
Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction
of the Learned Magistrate concerned, from harassment by unscrupulous persons from false
complaints. The use of expression "shall", looking to the intention of the legislature to the context,
is mandatory before summons are issued against the accused living beyond the territorial
jurisdiction of the Magistrate.

II. Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of
Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure
(Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such
persons who reside at far of places with a view to save them from unnecessary harassment and the
Learned Magistrate concerned is under obligation to find out if there is any matter which calls for
investigation by Criminal Court in the light of the settled principles of law holding an enquiry by
way of examining the witnesses produced by the complainant or direct an investigation made by a
police officer as discussed hereinabove.

III. When an order of issuing summon is issued by a learned Magistrate against an accused who is
residing at a place beyond the area in which he exercises his jurisdiction without conducting an
enquiry under Section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate
concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the
Appellate Court.

IV. Keeping in mind the object underlined in Section 465 Cr.P.C. that if on any technical ground
any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest
stage. In the event of failure on the part of an aggrieved party to raise objection at the earliest stage,
he cannot be heard on that aspect after the whole trial is over or even at a later stage after his
participation in the trial.

V. In cases falling under Section 138 read with Section 141 of the N.I.
Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1)
before issuing summons to an accused residing outside the territorial jurisdiction of the learned
Magistrate concerned.

101. Before parting with, we acknowledge the assistance rendered by Mr. Kaushik Chanda, learned
Additional Solicitor General, Mr. Ayan Bhattacharya, learned Counsel and Mr. Tirthankar Ghosh,
learned Counsel for rendering their assistance to us for arriving at the above conclusion.

102. Hence, after dealing with the issues which crop up in terms of the reference, these applications
are send back to the appropriate court for deciding the issues involved in the respective applications
on its merit in the light of the principles of law discussed hereinabove. .

103. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on
priority basis.

I agree. (Debasish Kar Gupta, J.)

(Shekhar B. Saraf, J.)

Central Bank Of India vs The State (Gnct Of Delhi) on 1 February, 2019

IN THE COURT OF MS. SANTOSH SNEHI MANN,

ADDITIONAL SESSIONS JUDGE - cum - SPECIAL JUDGE
(PC ACT), CBI-03, PATIALA HOUSE COURTS, NEW DELHI

CR No. 54/2018
CIS No. 334/2018

Central Bank of India,

A body corporate constituted under
the Banking Companies (Acquisition &
Transfer) of Undertaking Act 1970,
having its Head/Central Office at
Chandermukhi, Nariman Point,
Mumbai-400021 and branch office
amongst others at Non-business office
Service Support Branch, CCC,
Chuna Mandi, New Delhi,
through its authorized signatory. ..... Petitioner

Versus

1. The State (GNCT of Delhi)

2. Syndicate Bank through its
Chairman & Managing Director,
Central Office/ Head Office,
Post Box No. 1, Manipal-576104
District Udupi, Karnataka.

3. Chief Manager, Service Branch,

Syndicate Bank, Jeewan
Prakash Building, 25, K.G.
Marg, New Delhi-110001

4. Manager, Syndicate Bank

having its branch at Madhuban,
Bapu Bazar, Udaipur, Rajasthan-
313001.
CR No. 54/2018 : Page 1 of 9
Central Bank of India vs. The State & Ors.
5. Shri Sunil R. Soni s/o Shri
Ramphal Soni, account holder
with Branch Office Syndicate
Bank, Mansarover Branch,
Modhak Priya, Plot No. 16 & 17,
Part-II, Shipra Park,
Mansarover, Jaipur-302020

And also at : 102, UDBECO Home,

Mansarover, Jaipur-302020

6. Syndicate Bank, Mansarover

Branch, Modhak Priya, Plot No. 16
& 17, Part-II, Shipra Park,
Mansarover, Jaipur-302020

7. S.I. Surtanand,
Police Station Parliament Street
New Delhi ..... Respondents

Date of Institution of Revision : 05.09.2018

Arguments heard : 21.01.2019
Order pronounced : 01.02.2019

ORDER
1. This revision petition u/s. 397 Cr.PC is filed against the order of Metropolitan Magistrate dated
06.08.2018 in a criminal complaint u/s. 200 Cr.PC filed by the petitioner for the offences u/s. 417,
418, 419, 420, 464, 467, 468, 471 r/w section 120B/34 of IPC, registered vide CC No. 6960/18,
titled Central Bank of India vs. Syndicate Bank & Ors., vide which complaint of the petitioner
along with an application u/s. 156 (3) Cr.PC was returned for want of territorial jurisdiction with
liberty to the petitioner to file it before the court having jurisdiction over Central Bank of India vs.
The State & Ors.

the matter.

2. I have heard Mr. S. A. Khan, counsel for petitioner/revisionist and Ms. Sweta Verma, Addl. PP
for the respondent no.1/State & respondent no. 7. Notice to other respondents was not issued as it
was not necessary in the facts and circumstances. I have perused Trial Court Record.
3. Petitioner bank is a nationalized bank having its head/Central Office at Chandermukhi, Nariman
Point, Mumbai-400021 and one of its Branch at Non-business office at Service Support Branch,
CCC, Chuna Mandi, Pahar Ganj.

4. M/s. Pheroze Framroze Co. Pvt. Ltd. having account no. 3193103253 at Corporate Finance
Branch MMO Building, Mumbai-400023 had issued a cheque bearing no. 078942 for Rs.93,225/-
dated 12.01.2015 in favour of Union Bank, which was forged by the accused no. 6 by
copying/cloning the said cheque in his own name and filled the amount of Rs.7,36,320/- in the said
cheque dated 02.01.2015. The forged cheque was presented for encashment with the
revisionist/petitioner, in collusion of respondents no. 2 to 6 and was cleared from the account of
M/s. Fheroze Framroze Co. Pvt. Ltd. on 13.01.2015 on Truncated Image basis.

5. The fraud was detected when the original cheque bearing No. 078942 dated 12.01.2015 for
Rs.93,225/- was presented for encashment by the Union Bank of India to the revisionist, which was
dishonoured for the reason that the cheque bearing the same number had already been honoured by
the revisionist Central Bank of India vs. The State & Ors.

Service Support Branch, Parliament Street, New Delhi, on the basis of Truncated Image.

6. The Trial Court vide impuged order dated 06.08.2018 returned the complaint along with the
application u/s. 156 (3) Cr.PC of the petitioner on the ground that it had no territorial jurisdiction to
try this case. Relevant paras of the impugned order are :

For offence punishable as cheating, Cr.P.C. has provided the place of inquiry and trial and it can
only be where the deception was practised and property was handed over. From the complaint, it is
apparent that the deposit and withdrawal had taken place from the accounts of banks which are not
within the jurisdiction of this Court. The accounts debited and credited are not within the
jurisdiction of this Court. Similarly, for forgery, it has to be at the place where the same was
committed, which is not clear from the complaint that it was done in the jurisdiction of this Court.
Ld. Counsel has made reference to the RBIs circular dated 24.02.2012 empowering the complainant
bank to register the complaint even assuming that as a CCPC branch, it may not be empowered.
However, this Court is of the view that the circular cannot over rule the law stipulated by Cr.P.C.
and the complainant bank has to file the complaint before the police station having jurisdiction.
Jurisdiction upon this Court cannot be conferred by the RBI Circular.
Hence, this Court is satisfied that this Court does not have the jurisdiction over the matter. Placing
reliance upon Ramesh Awasthi vs. State of NCT of Delhi, CRL.M.C. 666/2017, Delhi High Court,
this court is not inclined to order zero FIR.
7. The cheque in question in the name of respondent no. 5 was presented in respondent no. 6 bank,
where respondent no. 5 Central Bank of India vs. The State & Ors.
had the account. Respondent no. 3 bank is the clearing bank of respondent no. 6, which had sent the
image of the cheque to the petitioner bank for clearance. It is submitted by the counsel for the
petitioner that as per C.T.S. clearing norms, original cheques were retained by the presenting bank
and only image of the said cheques was sent to the petitioner bank for payment. Alleged
manipulation of those cheques by alteration, tampering or forgery was not apparent on the image of
the cheques and therefore, the cheques in question were passed by the petitioner bank through
C.T.S in normal course of banking business. The fraud being played came to notice of petitioner
bank subsequently.

8. The impugned order is challenged on the ground that the Trial Court had committed error by
holding that it had no territorial jurisdiction and the reasoning is against the settled principles of law
through various judicial pronouncements.

9. In Ramesh Awasthi (supra) the issue before Delhi High Court was - ''Whether the Metropolitan
Magistrate having territorial jurisdiction over an area has the power to direct the Area SHO to
register zero FIR about offence committed outside the jurisdiction and then transfer the same to the
concerned police station having jurisdiction?'' It was in this context that the court held that even if
the offence is committed beyond the territorial jurisdiction of a police station, the Officer In-charge
should register the FIR and investigate, but a Magistrate u/s. 156(3) Cr.PC cannot direct an Officer
In-charge of a police station to register FIR Central Bank of India vs. The State & Ors.

beyond its territorial jurisdiction.

10. Jurisdiction of the criminal courts in inquiries and trials is governed by Chapter XIII of Cr.PC
and according to section 177 Cr.PC, an offence shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed. In the present context section 179 Cr.PC is
relevant, which reads as under - ''179. Offence triable where act is done or consequence ensues.-
When an act is an offence by reason of anything which has been done and of a consequence which
has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction
such thing has been done or such consequence has ensued.'' (emphasis supplied)

11. In Lee Kun Hee, President, Samsung Corporation, South Korea & Ors. vs. State of Uttar
Pradesh & Ors., (2012) 3 Supreme Court Cases 132, the Hon'ble Supreme Court dealt with the issue
of territorial jurisdiction of Indian Courts when complainant was against the foreigners stationed in
different foreign countries but their acts/ommisions were connected with transactions/cause of
action arising in India. Relevant paras of the judgment are :

28. ............... The place where the agreement was executed, as well as, the places where different
constituents of the agreement were carried out, are material factors to determine the relevant
court(s) which would/could have jurisdiction in the matter. The place where the consequence of the
criminal action (alleged in the complaint) ensues, may also be relevant for the said purpose. And
finally, place(s) of receipt and dispatch of communications exchanged by the rival parties, revealing
deception as an ingredient of cheating alleged by the Central Bank of India vs. The State & Ors.
complainant, can also be relevant to identify the court(s) having jurisdiction in the matter. The
aforesaid relevance becomes apparent from Sections 179, 181 and 182 of the Code of Criminal
Procedure, which we shall presently examine.
(emphasis supplied) ............
...........
...........
35. Besides the aforesaid, under Section 179 of the Code of Criminal Procedure, even the place(s)
wherein the consequence (of the criminal act) "ensues", would be relevant to determine the court of
competent jurisdiction. Therefore, even the courts within whose local jurisdiction, the
repercussion/effect of the criminal act occurs, would have jurisdiction in the matter.
..............
.............
.............
42. Section 179 of the Code of Criminal Procedure vests jurisdiction for inquiry and trial in a Court,
within whose jurisdiction anything has been done with reference to an alleged crime, and also,
where the consequence of the criminal action ensues. Section 181(4) of the Code of Criminal
Procedure leaves no room for any doubt, that culpability is relatable even to the place at which
consideration is required to be returned or accounted for. Finally, Section 182 of the Code of
Criminal Procedure postulates that for offences of which cheating is a component, if the alleged act
of deception is shown to have been committed, through communications/letters/ messages, the court
within whose jurisdiction the said communications/letters/messages were sent (or were received),
would be competent to inquire into and try the same. Thus viewed, it is not justified for the
appellants to contend, that the allegations levelled by the complainant against the accused, specially
in respect of the five appellants herein, are not relatable to territorial jurisdiction in India, under the
provisions of the Code of Criminal Procedure.
12. Therefore, in view of the sec. 179 Cr.PC & Lee Kun Hee (supra) not only a court, within whose
local jurisdiction the offence is committed, will have the jurisdiction to try that case, but the Central
Bank of India vs. The State & Ors.

court in whose jurisdiction consequence of a criminal act is ensued, will also have the jurisdiction.

13. Coming to the facts in the petition, manipulated and forged cheque in the name of respondent
no. 5 was presented in respondent no. 6 bank at Mumbai, outside the jurisdiction of PS Parliament
Street, but its consequence was ensued at Service Support Branch of the petitioner bank at
Parliament Street, New Delhi, which falls within the area of jurisdiction of PS Parliament Street.
The bad cheque was cleared for payment by Service Support Branch of the petitioner bank at
Parliament Street, New Delhi on the basis of its image as per rules of banking business, without
which the offence of cheating & use of a forged document would not be complete. Ramesh Awasthi
(supra) is not relevant to the facts of these cases. Thus, the Trial Court having the jurisdiction of the
area falling in Police Station Parliament Street has the territorial jurisdiction over the matter.

14. Therefore, the Trial Court has committed error by returning the complaint u/s. 200 Cr.PC and
the application u/s. 156 (3) Cr.PC. The revision petition is allowd and impugned order dated
06.08.2018 is set aside. Trial Court is directed to decide the complaint u/s. 200 Cr.PC and the
application u/s. 156 (3) Cr.PC, on merits.

15. Petitioner/revisionist is directed to appear before the Trial Court on 08.02.2019.

16. Trial Court Record be returned to the Trial Court along with the copy of this order.

Central Bank of India vs. The State & Ors.

17. Revision file be consigned to the Record Room.

Announced in the open Court

on 01.02.2019 (Santosh Snehi Mann)
Addl. Sessions Judge-cum-Special Judge
(PC Act), CBI-03, New Delhi District,
Patiala House Courts, New Delhi.

Central Bank of India vs. The State & Ors.

Kuljit Singh Sethi vs The State Of Assam And Anr on 18 January, 2019
Page No.# 1/12

GAHC010212292018

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Pet. 971/2018

1:KULJIT SINGH SETHI

S/O SABINDRAJIT SINGH SETHI, R/O P.E.K APARTMENT, NEAR NLR
PETROL PUMP, DIMAPUR, PO DIMAPUR, DIST. DIMAPUR, NAGALAND

VERSUS

1:THE STATE OF ASSAM AND ANR.

REP. BY PP, ASSAM

2:AMRIT KAUR
W/O SRI KULJIT SINGH SETHI
D/O LATE JAGADISH SINGH
R/O GARHALI
RAKHARA GALI
JORHAT
PO JORHAT
PS JORHAT
DIST. JORHAT (ASSAM) 78500

Advocate for the Petitioner : MR A TEWARI

Advocate for the Respondent : MR. B B GOGOI(ADDL.PP, ASSAM)

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER (CAV)
Date : 18-01-2019 By this application u/s 482 CrPC , the petitioner prays for setting aside the order
dated 02-07-2018 passed in C.R. Case No. 85 of 2018, whereby, learned magistrate took
cognizance Page No.# 2/12 against the petitioner, as well as for quashing the proceeding in the said
CR Case No. 85 of 2018.
2. Learned counsel, Mr. A. Tiwari for the petitioner and Ms. Beauty Talukdar for the respondent
No. 2 were heard.

3. The respondent No. 2, as complaint, lodged a complaint against the present petitioner, which was
registered as CR Case No. 85 of 2018. On the basis of said complaint and upon enquiry made under
Section 200 Cr.P.C., learned Magistrate took cognizance of offence u/s 406 IPC against the
petitioner.

4. Learned counsel for the petitioner, Mr. Tiwari submitted that no part of the cause of action for
the offence arose within the jurisdiction of Addl. Chief Judicial Magistrate, Jorhat, and as such,
learned Judicial Magistrate lacked territorial jurisdiction to try the case. Further contention of Mr.
Tiwari was that the petitioner/respondent was the resident outside the jurisdiction of the learned
Addl. Chief Judicial Magistrate, Jorhat, and as such, the order taking cognizance and issuing
process stood vitiated for non-compliance of the mandatory provision of Section 202 (1) Cr.P.C. It
was also contended by the learned counsel for the petitioner that the allegations made in the
complaint did not make out any offence u/s 406 IPC.

5. Learned counsel for the respondent, Ms. Beauty Talukdar, placing reliance on a decision of this
Court in Bala Kishan Dhandania and Ors.-VS- Nidhi Dhandhania reported in 2016 (2) GLT 100,
contended, that as the Stridhana were to be returned at the paternal home of the respondent no. 2 at
Jorhat, the court at Jorhat certainly had the territorial jurisdiction to try the case. As regards the
contention of the learned counsel regarding non-compliance with the provision of Section 202 (1)
CrPC, counsel for the Page No.# 3/12 respondent contended that even in the event of holding the
provision of Section 202 (1) Cr.P.C. to be mandatory, entire proceeding cannot be quashed and the
matter may be remitted back to the trial magistrate for compliance with the provision of Section
202(1) Cr.P.C.

6. From the rival submission made by the parties, the following points fell for consideration in this
criminal petition :

i) Whether the allegations made in the complaint makes out an offence u/s 406 IPC ?
ii) Whether non-compliance of the provision of Section 202 (1) vitiates the criminal proceedings,
rendering the same liable to be quashed ?
iii) Whether the Addl. Chief Judicial Magistrate, Jorhat has the territorial jurisdiction to try the case
?
Point No. 1.

7. It is the settled principle as held by the Apex Court in a catena of decisions, that when a criminal
proceeding is sought to be quashed at the initial stage, the test to be applied, is whether the
uncontroverted allegations made in the complaint or FIR makes out any offence ? If the answer is
yes, there is no scope for quashing the proceeding. As a corollary to the same, when the allegations
made in the complaint in their face value fails to make out any offence, the court should not hesitate
to quash a criminal proceeding, if it is considered necessary to secure the ends of justice or to
prevent the abuse of the process of the court. It is therefore, necessary to have a look at the
complaint sought to be quashed.

Page No.# 4/12

8. The respondent No. 2 is the wife of the present petitioner. It has been alleged in the complaint
that the petitioner and respondent No. 2 were married on 23-02-2014 and the marriage was
solemnised at Jorhat. After marriage, the respondent No. 2 started living with the petitioner as
husband and wife at Dimapur and spent three months of conjugal life smoothly. Thereafter, the
petitioner started to torture the respondent No. 2 physically and mentally and as such, the
respondent No. 2 was compelled to file a criminal case against the petitioner u/s 498-A IPC and
eventually the respondent No. 2 was thrown out of the matrimonial home. Consequently, the
respondent No. 2 took shelter in her parents' house. All the cloths, ornaments and other articles of
the respondent No. 2 remained with the petitioner, which the petitioner and the members of his
family refused to return to the respondent No.

2. Hence, the complaint was lodged. The proposition that refusal of the spouse to return the
stridhana to the wife constitute the offence of criminal breach of trust, is well settled by long line of
decision of the Apex Court (see AIR 1985 SC 628). Therefore, from the above allegations made in
the complaint, it is hard to say that no prima facie case u/s 406 IPC was made out.

9. The allegations made in the complaint were of course denied by the petitioner and stated that the
allegations were false and concocted. It is the trite law, that while dealing with the petition u/s 482
Cr.P.C. for quashing a criminal proceeding, the High Court cannot embark upon an enquiry as to
the merit of the case or as to the veracity of the allegations made in the complaint or FIR, which is
something to be done by the trial court (see ( 1993) 3 SCC 54, Radheshyam Khemka and Another-
VS- State of Bihar : (2002) 3 SCC 89, State of Karnataka -VS- Devendrappa and Another ). If the
allegations made in the complaint prima facie make out any offence, the High court is supposed to
stay its hand Page No.# 5/12 leaving the matter to the Investigating Agency or the court, as the case
may be, to take to its culmination. Therefore, the point no. 1 apparently does not favour the
petitioner for quashing the proceeding.

10. Section 177 Cr.P.C. provides that every offence shall ordinarily be inquired into and tried by a
court, within whose local jurisdiction it was committed. Section 179 of the Cr.P.C. provides that
when an act is an offence by reason of anything which has been done and of a consequence, which
has ensued, the offence may be inquired into or tried by a court, within whose local jurisdiction
such thing has been done or such consequence has ensued. Section 181 of the Cr.P.C. provides for
place of trial in respect of certain specific offence. Section 181 (4) of the Cr.P.C. provides, that any
offence of criminal misappropriation, or criminal breach of trust may be enquired into or tried by a
court within whose local jurisdiction, the offence was committed or any part of the property, which
is the subject of the offence, was received or retained or was required to be returned or accounted
for by the accused persons. Therefore, in view of specific provision contained in subsection (4) of
Section 181 Cr.P.C. an offence of criminal breach of trust may be enquired into and tried by the
following courts :-

i) the court within whose local jurisdiction the offence was committed.
ii) the court within whose local jurisdiction any part of the property being the subject of the offence
was received.
iii) The court within whose local jurisdiction any part of the property being subject of offence was
retained.
iv) the court within whose local jurisdiction the property or any part of the property, which is the
subject of offence was required to be returned or accounted for by the accused persons.
11. The offence of criminal breach of trust has been defined in Section 405 IPC, which reads as
under :

Page No.# 6/12 Section 405. Criminal breach of trust --- Whoever, being in any manner entrusted
with property, or with any dominion over property, dishonestly misappropriates or converts to his
own use that property, or dishonestly uses or disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express
or implied, which he has made touching the discharge of such trust, or wilfully suffers any other
person so to do, commits "criminal breach of trust".
12. The basic ingredients of the offence of criminal breach of trust as per the above definition are
entrustment of property or dominion over the property and dishonest misappropriation of the
property. Dishonest misappropriation of the property can be done either by converting the property
for own use of the accused or disposing of the property in violation of the directions or stipulation
in which the trust is to be discharged. In order to make out an offence of criminal breach of trust,
the complainant needs to aver in the complaint as to how or where the entrustment took place or
where the property was received or retained, how the accused misappropriated the property and
what was the mode of discharge of the trust or in other words, when the property was to be returned
or accounted for.

13. From the allegations made in the complaint, as indicated above, admittedly after the marriage
the respondent, no. 2 was living with the petitioner in his house at Dimapur and the marital boat
having moved into rough weather, the respondent no. 2 was forced to leave the matrimonial home
at Dimapur leaving all her articles including ornaments. cloths, etc., in the custody of the petitioner.
It was also alleged in the complaint that on 05-05-2018, mother, Page No.# 7/12 brother and aunt of
the respondent No. 2 went to the house of the petitioner at Dimapur to bring the goods of the
respondent no. 2, but the petitioner refused to give the articles. The above allegations show, that the
subject of offence were retained at Dimapur and the offence of misappropriation, if any, was also
committed at Dimapur as the petitioner refused to return the articles of the respondent no. 2. There
is no allegation in the complaint that the articles in respect of which the offence is said to have been
committed were entrusted with the petitioner at Jorhat or the petitioner received the property at
Jorhat. Rather, the allegations that the respondent no. 2 left the matrimonial home leaving her
belongings including ornaments with the petitioner suggests, that the property was entrusted or the
petitioner received the property at Dimapur. There was also no allegation in the complaint regarding
any stipulation of returning the articles to the respondent no. 2 at Jorhat. Therefore, from the
allegations made in the complaint it transpires, that no part of the offence or cause of action arose at
Jorhat. Since there is no allegation or material to show, that either the offence was committed at
Jorhat or the property was received or retained at Jorhat or the articles were to be returned at Jorhat,
apparently, the court at Jorhat did not have the territorial jurisdiction to enquire into and try the
offence, in view of specific provision contained in sub-section (4) of Section 181 of the Cr.P.C.

14. In Y. Abraham Ajith & Ors.- VS- Inspector of Police, Chennai reported in (2004) 8 SCC 100,
the Apex Court held in para 12, 13 & 19 as under :

"12. The crucial question is whether any part of the cause of action arose within the jurisdiction of
the court concerned. In terms of Section 177 of the Code, it is the place where the offence was
committed. In essence it is the cause of action for initiation of the proceedings against the accused.
13. While in civil cases, normally the expression "cause of action" is Page No.# 8/12 used, in
criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the
offence is committed. These variations in etymological expression do not really make the position
different. The expression "cause of action" is, therefore, not a stranger to criminal cases.
19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the
complainant in the complaint petition, the inevitable conclusion is that no part of cause of action
arose in Chennai and, therefore the Magistrate concerned had no jurisdiction to deal with the matter.
The proceedings are quashed. The complaint be returned to respondent No. 2 who, if she so
chooses, may file the same in the appropriate court to be dealt with in accordance with law. The
appeal is accordingly allowed."
15. Following the decision in Y. Abraham Ajith's case, the Apex Court in Bhura Ram & Ors.-VS-
State of Rajasthan and Ors., reported in (2008) 11 SCC 103 held that court cannot try the offence at
a place, where no part of the offence was committed within its jurisdiction. In the said case, the
Apex Court having quashed the proceeding, on the ground, that no part of the offence was
committed within the territorial jurisdiction of the Magistrate, the complaint was directed to be
returned to the complainant enabling him to file the same in appropriate court, having territorial
jurisdiction. As no part of the offence or cause of action arose within the territorial jurisdiction of
Jorhat, I find force in the submission of the learned counsel for the petitioner, that the Judicial
Magistrate, Jorhat did not have the jurisdiction to enquire into or try the case in hand. Learned
counsel for the respondent placing reliance on Balkishan Dhandhania-VS- Nidhi Dhandania (supra)
submitted, that members of the family of the husband were under obligation to return the stridhana
to the wife/respondent no. 2, in her place at Jorhat, and as such, the place, where such properties
were to be returned, has the jurisdiction to try the offence under Section 406 IPC.

16. The question whether there was any stipulation to return the property at the paternal home of the
wife, is a question of fact and has to be decided on the basis of the evidence Page No.# 9/12 and
facts and circumstances of each case. In the present case, there is no material on record to show that
the properties were to be returned to the wife at her paternal home at Jorhat. There is even no
averment in the complaint to that effect. Therefore, on factual matrix the decision of this Court in
Balkishan Dhandhania's case has no application in the instant case. On the facts of the case, it was
decided in Balkishan Dhandhania, that the properties were to be returned at the place, where the
wife was residing and no ratio was laid down that there shall always be a presumption that
properties shall be returned to the wife at the place of her residence or paternal home. Since there
was no material or averment in the complaint, wherefrom it could be discerned, that the properties
were to be returned to the respondent no. 2 at her paternal home at Jorhat, there could not be any
presumption, that properties were to be returned at Jorhat. What is therefore, abundantly clear from
the allegations made in the FIR and the other materials is that no part of the offence or the cause of
action arose within the territorial jurisdiction of Jorhat, and as such, the court at Jorhat lacks
jurisdiction to enquire into and try the case. Accordingly, this point is decided against the
respondent no. 2.
17. Admittedly, as would appear from the complaint, the petitioner is the resident of Lahorijan
Karbi Anglong, which is not within the jurisdiction of the Judicial Magistrate, Jorhat. Section 202
(1) Cr.P.C. provides that any magistrate on receipt of a complaint of an offence, of which, he is
authorised to take cognizance or which was made over to him u/s 192 Cr.P.C., may, if he thinks fit,
and shall in 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 Page No.# 10/12 there is sufficient ground for
proceeding. Sub-section (2) of Section 202 CrPC provides that in an enquiry under sub-section (1)
the magistrate if he thinks fit may take evidence on oath. The word "shall" used in subsection (1) of
Section 202 CrPC clearly indicates that when the accused is the resident of a place which is beyond
the territorial jurisdiction of the magistrate, the enquiry under subsection (1) of Section 202 is
mandatory.

18. The Apex Court in Uday Sankar Awasti-VS- State of U.P . reported in (2013) 2 SCC 435 held
in paragraph 40 of the judgment as under :
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section
202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of
Section 202 Cr.P.C. were amended vide Amendment Act, 2005, making it mandatory to postpone
the issue of process where the accused resides in an area beyond the territorial jurisdiction of the
Magistrate concerned. The same was found necessary in order to protect innocent persons from
being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire
into the case himself, or to direct investigation to be made by a police officer, or by such other
person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for
proceeding against the accused before issuing summons in such cases."
19. This Court in Balkishan Dhandhania (supra) also held that when the accused resides at a place
beyond the territorial jurisdiction of the magistrate taking cognizance of an offence, enquiry u/s 202
(1) CrPC is mandatory and it's non-compliance will render the order of issuance of process illegal.
In the present case admittedly the accused/petitioner was not a resident within the jurisdiction of the
learned magistrate, and inquiry u/s 202 (1) Cr.P.C. was not conducted. Therefore, the order of
taking cognizance and issuance of process stood violated for violation of the mandatory provision
of Section 202 (1) of the CrPC, and as such, the order of taking cognizance and issuing process is
liable to be set aside. Accordingly, the third point is also decided in favour of the petitioner.

Page No.# 11/12

20. In Balkishan Dhandhania (supra), this Court after having set aside the order of cognizance and
issuance of process, remitted the case to the trial court for passing a fresh order after complying
with the provision of Section 202 (1) Cr.P.C., as the complaint otherwise disclosed criminal
offence. The decision of Balkishan Dhandhania's case was also followed by a learned Single Bench
of this Court in Bajay Kumar Jalan, son of Ramawatar Jalan & Ors.-VS- State of Assam reported in
2017 (5) GLT 811, wherein, this Court after setting aside the order of taking cognizance and issuing
process for non-compliance with the provision of Section 202 (1) Cr.P.C. and for lack of territorial
jurisdiction, directed the magistrate to return the complaint to the complainant for presenting it
before the court having jurisdiction. In Y. Abraham Ajith & Ors.- VS- Inspector of Police (supra),
the Apex Court, after having quashed the proceeding for lack of territorial jurisdiction of the
magistrate directed the complaint to be returned for enabling the complainant to file it before the
court having jurisdiction. The same course was followed by the Apex Court in Bhura Ram and
Another-VS- State of Rajasthan (supra).

21. In the instant case, though, the allegations made in the complaint prima facie disclosed an
offence u/s 406 IPC, the impugned order of taking cognizance, was vitiated because of lack of
territorial jurisdiction of the magistrate and also for violation of the mandatory provision of Section
202 (1) Cr.P.C. Therefore, the proceeding in C.R. Case No. 85 of 2018 is quashed. However,
following the principle laid down by the Apex Court in Abraham's case as well as Bhura Ram's case
and also the decision of the learned Single Bench of this Court in Bijay Kumar Jalan (supra), it is
directed that the complaint be returned with liberty to the respondent no. 2 to file the same afresh in
appropriate court having jurisdiction, if so desires.

Page No.# 12/12

22. With the above observation, the criminal petition stands allowed.

JUDGE Comparing Assistant

GOOGLE FORM RESPONSES
 BIBLIOGRAPHY

BOOKS:
 Kelkar R.V., Criminal Procedure, Eastern Book Company, Lucknow, 6th edn., 2014.
 Paul Benny, Simplified Approach to Criminal Procedure Code, Shree Ram Law House,
Chandigarh, 2nd edn., 2018.
 Tandon M.P., The Code of Criminal Procedure, Allahabad Law Agency, Faridabad, 16th
edn., 2005.
 D D Basu, The Code of Criminal Procedure, 5th Edition (2014)

STATUTES:
 The Code of Criminal Procedure, 1973.

WEBSITES:

 https://blog.ipleaders.in/jurisdiction-criminal-courts-india/
 https://papers.ssrn.com/sol3/DisplayAbstractSearch.cfm
 https://lawtimesjournal.in/
 http://jurip.org/wp-content/uploads/2017/05/
 http://www.legalserviceindia.com/articles/pun.htm
 https://www.lawctopus.com/academike/reformative
 https://courses.lumenlearning.com/atd-bmcc-criminaljustice
 https://www.lawnn.com/theories
 http://www.legalserviceindia.com/articles/pun_theo.htm
 https://shodhganga.inflibnet.ac.in/bitstream/10603/110084/9/09
 http://www.shareyouressays.com/knowledge/essay-on-the-brief
 https://indiankanoon.org/doc/1807066/