maskadvise 07 June 2015

Is inquiry u/s. 202 of cr.p.c. mandatory ?

The Complaint of "Theft" was filed u/s. 420 of IPC against the 3 Accused and one of the Accused resides outside the jurisdiction of that Court.

The Magistrate did not sent the matter for inquiry u/s. 202 of Cr. P. C. to the Police but the Magistrate directly rejected the said Complaint on same day by saying that these are not the ingredients of sec.420 of IPC.

Is it not mandatory by law that the inquiry u/s. 202 must have been initiated before rejecting the complant because the accused is residing outside the jurisdiction of that Court ?

Kindly guide.

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17 Replies

Atur Chatur (LAWYER ADVOCATE NOT REQD BECAUSE I FIGHT MYSELF PARTY-IN-PERSON (aturchatur@yahoo.com)) 07 June 2015

MM has the discretionary power. Read the order & what he said if that's written in order sheet then you can go for appeal in sessions.

Adv Shrikiran.B (Advocate) 07 June 2015

Dear maskadvise,

If the Magistrate feels that a prima facie case can be made out u/s 420 IPC, he can order inquiry under 202 Cr.P.C otherwise he can dismiss the petition straightaway citing the reasons for such orders.To inquire or not inquire any matter, completely lies with the discretion of the Magistrate.

As advised by Mr.Atur Chatur, collect the orders, go through them and appeal in the sessions court.

Hope this helps.

N.K.Assumi (Advocate) 07 June 2015

There are two kinnds of complaint, that comes before the Magistrate, that is, one is based on written ducuments along with oral submission before the Magistrate, and the other is purely based on oral testimony depending on the nature of the case. And in either of thse two kinds of complaints the Magistrate satisfaction of the credibility of the offence depending on his inquiry is crucial. Since it is the satisfaction of the Magistrate which is crucial, that inquiry under section 202 is not mandatory and the word shall may be read as may.Accordingly the magistrate may issue process against the acused or reject the complaint.

maskadvise 07 June 2015

I agree with al of you and thanks

kindly tell me "whetehr inquiry u/s. 202 of Cr.P.C. is mandatory or not" even if prima facia the ingredients of the offence do are not the part of that particular section under which the complainat was filed before the M.M.

Thanks.

Dr J C Vashista (Advocate) 08 June 2015

Dear "Maskadvise",

Throw away mask to seek "FREE" advise on query as per rules framed by LCI.

Criminal Procedure Code is directory and not "mandatory". Ask further clarification from a local tutor.

No inquiry is mandatory.

Adv. Chandrasekhar (Advocate) 08 June 2015

NOT MANDATORY.

Atur Chatur (LAWYER ADVOCATE NOT REQD BECAUSE I FIGHT MYSELF PARTY-IN-PERSON (aturchatur@yahoo.com)) 08 June 2015

NOT MANDATORY but still if your plaint is written in such amanner that you vehemently & specifically are of the view that it should NOT have been thrown out like that, then GOTO SESSIONS is the answer.

SAINATH DEVALLA (LEGAL CONSULTANT) 09 June 2015

Not mandatory has been mentioned by all the above experts.

Go through section 202crpc thouroughly.

Central Government Act

Section 202 in The Code Of Criminal Procedure, 1973

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 inquire 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: Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

Biswanath Roy (Advocate) 15 June 2015

The query is childish and non sense one, hence. NO REPLY.

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com ) 15 June 2015

All the experts above have not gone through the amendments in CRPC 202 and citations based on that - In 2013 APEX COURT has said in this matter as below:- Author: . B Chauhan Bench: D.K. Jain, Jagdish Singh Khehar CRIMINAL APPEAL of 2013 26. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C.,though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.. (See also: Shivjee Singh v. Nagendra Tiwary & Ors., AIR 2010 SC 2261; and National Bank of Oman v. Barakara Abdul Aziz & Anr., JT 2012 (12) SC 432). However the problem of this query is whether enquiry is essential when court rejects the complaint and it will be NO. IF YOU HAVE CONVICTION FOR YOUR STORY THAN YOU CAN GO IN REVISION., BUT WILL NEED AN EXPERT LEGAL PERSON.

maskadvise 16 June 2015

Thanks all who advised

Thanks Advocate shri Trilok.

Nobody should comment personally, may you be more intelligent,

If one does not want to reply no problem do not Reply. It is my request.

Sometimes the problem is tedious and we can not tell all deatils here in Forum all the points and so we ask certain advice and your advices may be usefull to him .

However eevrybody replied me and every Reply is useful to me for thanks to all and particulalry to Ld. Shri Roy saheb and I assure that next time you will not feel that I asked childish querry.

regards

Thanks

Biswanath Roy (Advocate) 16 June 2015

Dear Mr. Author,

In your post you stated the complaint of theft u/s. 420 IPC was filed against 3 accused and thereafter somewhere you stated whether sec.202. Cr. P.C. is mandatory. Be it noted theft case falls u/s. 378 IPC WHEREAS, SEC 420 IPC is applicable in case of cheating. Again you raised a query whether sec. 202 Cr. P.C. is mandatory. How it has relevance with the offense of alleged theft ? Because applicability of sec.202 Cr. P.C. arises persuant to an application u/s.200 Cr. P.C., BUT SURPRISINGLY NO WHERE IN YOUR POST YOU MENTIONED THAT you filed a petition u/s. 200 Cr. P.C. Summing up all such contradictory facts if I arrive at a conclusion that the subject query is a childish and non-sense one is it will be unfair?