BANSILAL S. KABRA Vs. GLOBAL TRADE FINANCE LIMITED

JUDGEMENT

(1.) In light of the cleavage of opinion on the aspect whether the amendment in Sec. 202, sub clause(1) of the Code of Criminal Procedure, contemplating an inquiry before issuance of process by the Magistrate, where the accused 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 972010 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. 26402009 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. 2762013) preferred against the impugned order was pending before the Apex Court and subsequently, in light of the Appeal being decided on 2392021, the matter is once again placed before the larger Bench, which is reconstituted on 31102023.

(3.) We have heard learned Advocate Shri Arun Mehta along with Advocate Aniket Srivastav for the applicant, Mr. H.S. Venegaonkar, Public Prosecutor for the State and Mr.Yashpal Thakur with Advocate Mukund Pandya for the respondent no.1. We have also perused the distinct orders passed by the respective Single Judge of this Court, resulting into this reference. With the passage of the time, since the reference was made, there is further evolution of law on the aspect involved and though there are decisions from this Court as well as the higher Court, which have categorically held that the provision is mandatory in nature, in our opinion, the conundrum has been put to rest by the Constitution Bench of the Apex Court in suo motu Writ Petition (CRL) No.2 of 2020 in Re EXPEDITIOUS TRIAL OF CASES UNDER Sec. 138 OF THE N.I. Act, 1881, headed by the then Hon'ble The Chief Justice of India on 1642021.