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2015 DIGILAW 195 (BOM)

Shailja v. Meerabai Balakdas Dhanvijay

2015-01-20

S.B.SHUKRE

body2015
JUDGMENT S.B. SHUKRE, J. 1. Heard learned counsel for the applicant and learned counsel for non-applicant Admit. Heard finally by consent. 2. By this application, three orders passed by the learned J.M.F.C., Chandrapur Regular Cri. Case No.186/13 have been challenged. These orders are dated 26.9.2013, 28.2.2014 and 19.7.2014. 3. By the impugned orders, according to learned counsel for the applicants, there has occurred a miscarriage of justice in the sense that the mandatory enquiry as contemplated under proviso (a) to Section 202(1) of Code of Criminal Procedure has not been conducted by the Magistrate and, therefore, the orders of issuance of process to the applicants as well as committing the criminal complaint case to the Court of Sessions have been vitiated in law. In support of this contention, learned counsel for the applicants has referred to me a decision of Kerala High Court in Moideen Kutty Haji & ors. v. Kunhikoya & ors. AIR 1987 Ker. 184 . 4. Learned counsel for respondent gracefully concedes the legal position since one of the offences, i.e. offence punishable under Section 315 of Indian Penal Code, alleged against the applicants is exclusively triable by the Court of Sessions. Enquiry contemplated under Section 202(1)(a) of Code of Criminal Procedure has to be conducted by the learned Magistrate himself and it cannot be substituted by a direction for investigation. 5. A bare perusal of Section 202 is enough to make it clear to us that under sub-section (1) of Section 202, it is left to the discretion of the Magistrate to postpone the issue of process against the accused, and either to enquire himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, and then to decide as to whether there are sufficient grounds for proceeding further in the matter. But this discretion of the Magistrate has been taken away when the offence complained of is triable exclusively by the Court of Sessions. It is laid down in Section 202(1) (a) that no direction for investigation to be made by the police officer or any other person can be issued when it appears that the offence alleged is triable exclusively by the Court of Sessions. It is laid down in Section 202(1) (a) that no direction for investigation to be made by the police officer or any other person can be issued when it appears that the offence alleged is triable exclusively by the Court of Sessions. This part of the enquiry to be made by the Magistrate in cases where the offence complained of is exclusively triable by the Court of Sessions has been held by the Full Bench of Kerala High Court in the case of Moideen Kutty Haji as mandatory making it compulsory for the Magistrate to enquire into the case by himself. If this mandatory enquiry has not been made by the Magistrate, the order of issuance of process by the learned Magistrate would have to be held as passed in breach of express provisions of law. If any investigation has been directed by the Magistrate, the order would have to be considered as against the specific provision of law. Two orders dated 26.9.2013 and 28.2.2014 passed by the Magistrate fall within this category, i.e. to say the orders passed against express provisions of law and, therefore, they cannot be allowed to stand. 6. If the orders of issuance of process to the accused, i.e. the applicants, has been found to be against the express provisions of law, the further order of committal of case to the Court of Sessions passed on 19.7.2014 would also have to be said to be in breach of law. This would be clear from proviso to sub-section (2) of Section 202 which lays down that whenever the offence complained of is triable by the Court of Sessions, the Magistrate is required to call upon the complainant to prove and examine himself on oath. This provision is mandatory as is evident from use of the word "shall". The order passed on 19.7.2014 is against the mandate of this proviso. Therefore, the third order also cannot be sustained in law. 7. In the result, I find that this application deserves to be allowed and it is accordingly allowed. All the three impugned orders are quashed and set aside. Complaint case is restored to the file of the concerned Magistrate, who shall proceed in the matter in accordance with law.