9911796707
TMI Blog2016 (7) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that when it is an admitted fact that all the applicants, who are the proposed accused persons are not the residents of the place within the territorial jurisdiction of Akola Court, this very fact required the learned Magistrate, as per Section 202 Criminal Procedure Code, to postpone the issuance of process and make an enquiry either by himself or investigation through a Police Officer in order to find out as to whether or not there is sufficient material for proceeding further in the matter. Since this has not been done by the learned Magistrate, the impugned order cannot be sustained in law. In support, he places his reliance upon the cases of National Bank of Oman v. Barakara Abdul Aziz and another, reported in: (2013) 2 SCC 488 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e body of the complaint that the respondent has admitted the fact that all applicants, who are the proposed accused, are residing at places falling outside the territorial jurisdiction of the Court of Judicial Magistrate, Akola. Therefore, mandate of Section 202 of the Code of Criminal Procedure would require the learned Magistrate to postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or some other fit person in order to decide as to whether or not there is sufficient ground for proceeding further. Such postponement of issue of process in a case where the accused is residing beyond the territorial jurisdiction of the Court of Judicial Magistrate has been made mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all." 7. Before the judgment in the case of Udai Shankar Awasthi (supra) was rendered, Hon'ble Apex Court in the case of National Bank of Oman (supra) had propounded the same law. In that case, Aurangabad Bench of this Court had taken a view that since the accused was residing in an area falling beyond the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in Section 202 CrPC 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Appaiyam and another (supra), I find that the facts of that case are different in the sense that those facts disclosed that the complaint had been prepared with a malafide intention and that sufficient grounds were not made out for proceeding against the applicants and, therefore, the High Court thought it fit to reject the contention of the applicants that the order of dismissal of the complaint was illegal and improper. In the instant case, the learned Magistrate has chosen to proceed further in the matter without following the mandate of Section 202 of the Criminal Procedure Code, which was not an issue involved in the said case of Appaiyam and another (supra). Therefore, even that case would not be of any assistance to the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
