HARISH RAMESHRAO UKEY Vs. KIRANLATA HARISH UKEY

JUDGEMENT

(1.) Admit. Heard finally by consent.

(2.) It is the contention of the learned counsel for the applicants that while issuing process, by the order passed on 12 th January, 2015, the learned 5th Judicial Magistrate, First Class, Akola has not followed the mandate of Section 202 of the Criminal Procedure Code, which has been newly amended by the Amendment Act, 2005 and, therefore, the order is vitiated. He also submits that when it is an admitted fact that all the applicants, who are the proposed accused persons are not the residents of the place within the territorial jurisdiction of Akola Court, this very fact required the learned Magistrate, as per Section 202 Criminal Procedure Code, to postpone the issuance of process and make an enquiry either by himself or investigation through a Police Officer in order to find out as to whether or not there is sufficient material for proceeding further in the matter. Since this has not been done by the learned Magistrate, the impugned order cannot be sustained in law. In support, he places his reliance upon the cases of National Bank of Oman vs. Barakara Abdul Aziz and another, reported in (2013) 2 SCC 488 and Udai Shankar Awasthi vs. State of Uttar Pradesh and another, reported in (2013) 2 SCC 435. He also submits that the Akola Court does not have territorial jurisdiction as the offence was not committed within its territorial limit and the applicants are also not residents of any place falling within territorial limit of Akola Court.

(3.) Learned counsel for the respondent submits that the impugned order is legal and correct and as it has been judicially passed. It is not open for this Court to substitute its view for the view taken by the Judicial Magistrate. He also submits that there are sufficient grounds for proceeding further in the matter and issuing process under Section 204 of the Criminal Procedure Code. As regards the inquiry to be made under Section 202 of the Criminal Procedure Code, learned counsel submits that same has been made by the learned Magistrate. In support, he places his reliance upon the case of Smt. Nagawwa vs. Veeranna Shivallngappa Konjalgi, Judgment passed by the Hon'ble Supreme Court of India on 23.4.1976, and the judgment of the Madras High Court in the case of Appaiyam and another vs. R. Kalaichelvi, Crl. O.P. Nos.36039/2007 and 777/20 08, decided on 6.2.2012.