S.202 CrPC | Magistrate Must Conduct Enquiry Before Summoning Accused Living Beyond Jurisdiction, Can't Solely Rely On Complaint: Bombay HC Full Bench

The Bombay High Court's full bench observed that when a Magistrate is conducting a mandatory inquiry under Section 202(1) of the Criminal Procedure Code (CrPC) before summoning an accused who lives outside the court's jurisdiction, the Magistrate shouldn't solely rely on the allegations in the private complaint as it can be used as an instrument of vendetta.

Instead, the Magistrate should undertake a deeper examination after recording the complainant or witness's statement on oath, and documentary evidence to ascertain if there are 'sufficient grounds' to issue process against the accused.

“It is… the duty of the Magistrate to prima facie find out, if the case is made out by the complainant against the accused before the process is issued, so as to avoid any frivolous or vexatious claims being taken forward by the Magistrate.”

The court opined that personal vengeance could never be perceived as the objective of the justice system.

“Vindication of majesty of justice and maintenance of law and order in the Society, being the primary object of criminal justice, would not bring within its sweep, a personal vengeance,” the court added.

Chief Justice Devendra Kumar Upadhyay, and Justices Bharati Dangre & Arif Doctor passed the order while disposing of an old reference as divergent views were taken by single judges of the Bombay High Court in 2009 & 2010.

The issue involved was whether an inquiry under Section 202(1) of the CrPC is mandatory before summoning an accused residing outside the court's jurisdiction, especially when the accused is residing in another city or state.

The bench observed that the issue was conclusively settled by a Constitution Bench of the apex court in a suo motu petition titled "Expeditious trial of cases under Section 138 of the NI Act, 1881".

The Supreme Court held it was mandatory for a Magistrate to hold an enquiry before issuing process against an accused under Section 204 of the CrPC. (Writ Petition No.2 of 2020 (AIR 2021, Supreme Court 1957)

The sub-clauses under Sections 201 (1) & 201(2) were brought in through an amendment in 2006.

“In our considered view, the question, referred to the larger Bench, is already answered by the Constitution Bench of the Apex Court as above, and therefore, we do not deem it necessary to answer the reference.”

However, the bench added that in view of Chapter XV of the CrPC, the Magistrate may himself hold an inquiry u/s. 202 of the Code, or direct investigation to be made by a police officer.

“We may also add that in a contingency, when he decides to conduct an inquiry, specifically against the persons residing outside his territorial jurisdiction, the inquiry must be aimed at ascertaining the truth or otherwise in the allegations made in the complaint. It is expected that the Magistrate shall not only rely upon the averments in the complaint, as it may many a times, contain unfounded allegations which require ascertaining of its veracity, before the process is issued, so as to separate the chaff from the grain.”

The bench observed that issuing summons to an accused person in a criminal case is a serious matter, not just a formality. The amendment to the Code requires that a Magistrate carefully examine the allegations in the complaint and consider both oral and documentary evidence to determine if there is enough proof for the complainant to succeed in establishing the charge against the accused, which would justify issuing a summons.

Case Title: Bansilal S. Kabra v. Global Trade Finance Limited & Anr

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