RANJIT SINGH,J - (1.) INVOKING the amended provisions of Section 202 Cr.P.C., this petition for quashing the complaint and summoning order is filed by the petitioner with the submission that it is obligatory upon the Magistrate to enquire into the case before summoning an accused residing beyond his jurisdiction. Noticing the contentions raised on behalf of the petitioner that no enquiry, as envisaged under Section 202 Cr.P.C., was held before summoning the petitioner, notice of motion in this case was issued.
(2.) DURING the course of hearing, submissions are made by the counsel representing the parties. There does not appear to be much differences on the basic issue arising for consideration due to this amendment incorporated in Section 202 Cr.P.C. Mostly concerned with the debate on the legal issue so raised, the counsel did not make any submission before the court if the impugned order is revisable or the fact that the enquiry in this case was held by the Magistrate before summoning the petitioner or not. There was otherwise a consensus between the counsel appearing for the petitioner and contesting respondent that enquiry would now be mandatory in a case where an accused person is found to be residing beyond the jurisdiction of a Magistrate dealing with the case. There was some debate about the nature of this enquiry. There may not have been any requirement to go into the scope of the amendment introduced and the effect thereof in view of the consensus between the counsel, yet it may be appropriate to go into this aspect as the issue was indeed debated before the court. To appreciate the submissions made, it would be essential to have a peep into the history of this provision. Section 202 Cr.P.C. makes a provision for postponement of an issue on process and has undergone modifications from time to time. Before its amendment, which came into force on 23.6.2006, Section 202 Cr.P.C. was a substantial reproduction of old Section 202 with certain modifications. Under the old Section, the Magistrate was required to record reasons in writing if he wanted to postpone the issue of process, which requirement, was done away with on the basis of recommendation made by the Law Commission. While recommending the deletion of this requirement, the Law Commission felt that no real purpose would be served by any expression of judicial opinion at that stage. Accordingly, words "for reason to be recorded in writing" occurring in sub-section (1) of Section 202 were deleted. Originally, this section permitted a Magistrate to direct an enquiry or investigation by any Magistrate subordinate to him when he received any complaint. This again was deleted on the recommendation of the Law Commission, which observed that case was ultimately to be decided by the Magistrate himself and if the evidence is to be finally weighed by a particular Magistrate, it is proper that it should be heard by the same Magistrate. The division of responsibility, which was implied in this section, was considered wholly undesirable. Another change, which had come in this section, is the replacement of words "a scrutiny, a truth or falsehood of the complaint" as existing in the old sub-section with the words "deciding whether or not there is sufficient ground for proceeding". It was felt that the former words, noted here-in-before, did not represent the real purpose of preliminary enquiry. Truth or falsehood of a complaint is not open to be decided at the stage of summoning an accused. It was also felt that real purpose of enquiry is to ascertain whether the grounds exist for proceeding or not. Even Clause (a) in the proviso to sub-section (1) was also a newly added provision. Sub-section (1) of Section 202 Cr.P.C. before recent amendment reads as under :- "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, postpone the issue of process against the accused, and either enquire 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."
(3.) THE recent amendment in the year 2006 now makes the sub-section read as under:- "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 enquire 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 words introduced by amendment as highlighted are :- "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction." ;