S C MATHUR CAPT Vs. ELEKTRONIK LAB

JUDGEMENT

(1.) These applications were listed before my predecessor and myself for admission. When these applica-tions were listed, learned Senior Counsel appearing for the parties urged that the Code of Criminal Procedure has been amended and as far as instant cases are concerned, an amendment to section 202 of the Cri.P.C, by Cri.P.C. (Amendment) Act, 2005, which has been brought into effect from 23rd June, 2006, is in issue. It is urged that a large number of private complaints filed in Mumbai and elsewhere are awaiting a authoritative pronouncement on the amendment and its interpretation. Therefore, before any orders are passed in these applications, they may be permitted to address the Court on the is-sue as to whether the amendment is man-datory or directory.

(2.) Their request has been acceded to by me and I have heard Mr. Desai and Mr. Gupte, learned Senior Counsel and Mr. Menon, learned Counsel appearing in sup-port of the plea that the amendment is man-datory whereas Mr. Mundergi and Mr. Jethmalani, learned Senior Counsel urged that the amendment cannot be held to be mandatory. All of them agreed that before the matters are taken up serially for admis-sion, this aspect must be clarified.

(3.) My attention has been invited to an order passed by this Court in Criminal Writ Petition No. 1814 of 2007, Rupee Cooperative Cooperative Bank Ltd. Vs. Rajul Ketan Rajpopat,2007 BCI 1. A learned Single Judge of this Court (Lordship Mr. Justice Marlapalle) on 28th September, 2007, while disposing of that petition, held that the amended scheme of section 202 of Cri.P.C, mandates that before issuance of process against a person located beyond ter-ritorial jurisdiction of the Magistrate con-cerned, he shall postpone the issue of proc-ess against such accused and thereafter, fol-low the procedure prescribed in the said sec-tion. According to learned Senior Counsel ap-pearing on the other side, it is urged that this is not a authoritative pronouncement but a mere expression of opinion and, there-fore, this order is not a precedent on the point that amended provision is mandatory. Equally, my attention was invited to an or-der passed by the Supreme Court in Crimi-nal Appeal No. 984 of 2009 K.T. Joseph Vs. State of Kerala,2009 DGLS(soft) 805 wherein the Hon'ble Supreme Court upheld the order of a learned Single Judge of the Kerala High Court. The learned Single Judge was analysing the amended section 202 of Cri.P.C, and the learned Judge's views have been quoted with approval in the Supreme Court order by observing that the legal posi-tion as set out in the learned Single Judge's order is unexceptionable. Once again it is urged that this order of the Supreme Court does not conclude the controversy. It is still at large. The Court will have to, therefore, give a ruling as to whether the amended section 202 is mandatory or directory.