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TMI Blog2024 (2) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is residing outside the jurisdiction of the Court, is discretionary or mandatory, a larger Bench was constituted by the then, Hon'ble The Chief Justice. Justice V.M. Kanade, (as His Lordship then was), in his order dated 9/7/2010 passed in Criminal Application No. 1344 of 2010, expressed his view that the amendment is directory and not mandatory, whilst he expressed disagreement with Justice S.C. Dharmadhikari (as his Lordship then was), who in his order passed in Criminal Application No. 2640/2009 was of the view, that the amended provision is mandatory in nature. 2. Reference made to the larger Bench was required to be deferred in the wake of the scenario, that the Appeal (Criminal Appeal No. 276/2013) preferred against the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code in relation to Section 145 of the Act". Referring to the amendment in Section 202 of Code enforced with effect from 23/6/2006 vide Act No.25 of 2005, which made it mandatory for the Magistrate to conduct an inquiry before issuance of the process, in a case where the accused resided beyond the area of the jurisdiction of the Court, the diversion of opinion among the High Courts relating to the applicability of the said provisions to the complaints filed under Section 138 of the Act, was noted. The amicus curiae advanced his submissions reflecting upon the imperative nature of the amendment and what is recorded in paragraph no. 11, of the Constitution Bench decision, deserves a reproduction :- "11 The learned Amici Curiae referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imperative for him to examine the witness on oath and in suitable cases, he may examine the documents for satisfying himself, as to the sufficiency of the grounds for proceeding u/s. 202 of the Code. 5. Though the above conclusions drawn in the suo motu Writ Petition, are touching the cases under Section 138 of the Negotiable Instruments Act, 1881, at a subsequent point of time and to be precise on 23/9/2021, the Criminal Appeal filed in the present proceedings, was heard along with the group of appeals and the question involved in the matters, namely, whether an inquiry u/s. 202 of the Cr.P.C, is mandatory or directory in nature, came to be answered by specifically reproducing, paragraphs 10 to 12 of the Constitution Bench Judgment, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, we would like to only add, by taking note, that Chapter XV of the Code, which contemplates complaints to the Magistrate, which includes Section 202, intended to achieve twin objects; one being to enable the Magistrate to carefully scrutinize the allegations made in the complaint with a view to prevent a person named therein, as accused from being called upon to face unnecessary, frivolous or meritless complaint; and the other, to find out whether there is any material in existence, to support the allegations in the complaint. The Magistrate is therefore, duty bound to el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint, to find out whether a prima facie case for issuance of process has been made out. We must, however, clarify that this inquiry is restricted to, ascertaining the element of truth or falsehood of the allegations in the complaint, based on the material placed by the complainant before the Court, and the inquiry is limited only to this extent i.e. to find out, if there is any matter which calls for investigation. 8. Summoning of an accused in a criminal case, is a serious matter and it certainly cannot be a perfunctory exercise. The amendment introduced in the Code therefore, contemplates that a Magistrate shall examine the nature of allegations in the complaint and take into account the evidence, both oral and documentary, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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