D KANNAMMAL Vs. RENUGA PALANISAMY

JUDGEMENT

(1.) THE petitioner in the above Criminal Original Petition is the accused in S. T. C. No. 1079 of 2007 on the file of the Judicial Magistrate No. IV, Salem and he is facing trial therein for an offence under Section 138 of the Negotiable Instruments Act. The above criminal original petition is filed seeking to quash all further proceedings in S. T. C. No. 1079 of 2007 on the ground that the learned Magistrate has not followed the mandatory provisions contained in the Amended Section 202 (1) of the Code of Criminal Procedure viz. , that the Court shall enquire into the case for the purpose of deciding if there is sufficient ground for proceeding against the accused who is residing outside the area over which the Court exercises jurisdiction had not been complied with.

(2.) THE learned counsel appearing for the petitioner invited the attention of this Court to the Amended Section 202 (1) of the Cr. P. C. which reads as follows: 202. Postponement of issue of process.-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised 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. " the learned counsel by relying upon the above said provision submitted that, in this case, admittedly, the accused/petitioner herein is residing at Madurai whereas the complaint has been filed at Salem and therefore when the accused is residing outside the area where the Court exercise its jurisdiction, the learned Magistrate is bound to follow the Amended Section 202 (1) of the Cr. P. C.

(3.) THE learned counsel by relying on the 'notes on Clauses' found under Section 19 of the Code of Criminal Procedure (Amendment) Act, 2005 submitted that the Amendment of Section 202 (1) requiring the Court to conduct an enquiry in cases where the accused resides outside the jurisdiction of the Court, for the purpose of deciding if there is a sufficient ground for proceeding against the accused, before issuing the process, was made by the Parliament taking note of the fact that false complaints are filed against persons residing at far off places simply to harass them and in order to see that the innocent persons are not harassed by unscrupulous persons. The learned counsel further submitted that it was only to protect the persons residing at far off places from harassment, Parliament in its wisdom had introduced such an amendment, making it obligatory for the Magistrate to conduct an enquiry in a private complaint filed against the accused residing outside the area over which the court exercises jurisdiction. Therefore, the learned counsel submitted that the order of the learned Magistrate taking the case on file by issuance of process to the accused / petitioner herein is illegal and is liable to be quashed.