SATTAR BHAIMIYA MANSURI Vs. SAU SHABANA ARIF MANSURI

JUDGEMENT

(1.) Rule made returnable forthwith. By consent of parties, petition is heard finally. This Petition is filed to challenge the order of issue process made in R.T.C. No. 5/07 by JMFC, Kopargaon, Dist. Ahmednagar in private complaint filed by respondent No. 1. The Magistrate has issued process for offence punishable u/s. 498-A, 500, 34 etc. of IPC. Petitioner nos. 1 and 2 are parents of the husband of respondent No. 1 and other petitioners are also relatives of the husband. In the complaint, the place of residence was given as Belapur Road, Shrirampur, Dist. Ahmednagar. The matter was filed in the Court of JMFC, Kopargaon, which is a separate Tahsil. It is the case of petitioners that in view of amendment effected to Section 202 of Cr.P.C., the Magistrate ought to have held enquiry or Magistrate ought to have made order of investigation with regard to present petitioners as amendment had come in effect on 23/6/2006, while complaint was filed on 15/12/2006. Both sides cited some reported cases on this point. In the case [National Bank of Oman V/s Barakara Abdul Aziz and another, 2013 2 SCC 488]; [Udai Shankar Awasthi V/s State of Uttar Pradesh and another, 2013 2 SCC 435], the Apex Court has laid down that in view of the amendment effected to Section 202 of Cr.P.C. It is incumbent upon the Magistrate to carry out an enquiry or order investigation u/s. 202 of Cr.P.C. before issue process when the accused are residing beyond the area over which the Magistrate concerned exercises jurisdiction. It is observed by the Apex Court that it is obligatory upon the Magistrate to follow this procedure and if the procedure is not followed, the order of issue process can be set aside. Similar observations are made by this Court in the case [Satish @ Rajendra S/o Harbans Tiwari and others V/s State of Maharashtra and another, 2010 3 MhLJ(Cri) 614 ].

(2.) On the other hand, the learned counsel for respondent placed reliance on the case Calcutta High Court. : [Rameshwara Jute Mills Limited V/s Sushil Kumar Daga and others, 2009 CrLJ 2727] In this case, the High Court held that the postponement of issue process by Magistrate is not mandatory and the Magistrate has discretion in this regard. The argument that the accused were residing in adjacent tahsil was considered by High Court in this reported case. As there a case of Apex Court, this Court holds that it is not possible to follow the Calcutta High Court case. For this single reason, the order of issue process needs to be set aside and the matter needs to be remitted back.

(3.) The learned counsel for respondent placed reliance on the case ported as : [Ashok Mehta V/s State of Maharashtra and others, 2005 CrLJ 3321], Bombay High Court, Nagpur Bench. This Court held that when efficacious alternate remedy like preferring revision is available, the proceeding like Writ Petition against order of issue process is not maintainable. For respondent No. 1, reliance is placed on another case reported as : [ASR Systems Private Ltd. and another V/s Kimberly Clark Hygiene Products Pvt. Ltd. and another, 2012 AllMR(Cri) 557] Bombay High Court. In this case, facts were different and the Court was considering the matter filed for offence u/s. 138 of Negotiable Instruments Act.