Full Judgment
Oral Judgment:
1. Admit. Heard learned counsel for the Applicants and learned A.P.P. for Respondent No.1, finally. Respondent No.2 though served, remained absent.
2. Learned counsel for Applicants has submitted that offence was registered at Nehrunagar Police Station, Mumbai bearing Crime No.204 of 2013 under Sections 494, 498A, 420, 504, 506 read with 34 of the Indian Penal Code, and for the same offence Respondent No.2 filed private complaint (M.A. No.9 of 2014) R.C.C. No.19 of 2014 before the Court of Judicial Magistrate First Class, Paranda for offence punishable under Section 494 read with 34 of I.P.C. against Applicants. Learned Counsel for Applicants submitted that F.I.R. filed by Respondent No.2 at Nehrunagar Police Station, Mumbai and private complaint filed at Paranda, are having similar allegations. It is argued that when F.I.R. was registered, such complaint could not have been filed. Counsel further submitted that the copy of Complaint at Exhibit E shows that the Magistrate merely recorded verification of the complainant-Respondent No.2 and has, on 18th January 2014, issued process against all the accused persons. The counsel referred to the addresses of the accused persons, which are all of beyond the jurisdiction of Paranda Court. According to learned counsel, under Section 202 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), when the accused persons were residing beyond the jurisdiction of the area in which the Magistrate was exercising the jurisdiction, it was necessary for the Magistrate to postpone the issue of process and either 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 deciding whether or not there is sufficient ground for proceeding. Learned counsel for the Applicants, in support of his submissions, placed reliance on the case of National Bank of Oman vs. Barakara Abdul Aziz and another, reported in (2013) 2 Supreme Court Cases, 488.
3. Learned A.P.P. for Respondent No.1 submitted that as per Section 210 of Code of Cr.P.C., filing of complaint is not barred only because F.I.R. has been filed.
4. Having gone through the record, I find substance in the arguments of learned counsel for Applicants that when accused persons were residing beyond the Judicial Magistrate First Class, Paranda, it was necessary on the part of the Magistrate that before issuing process, steps as per Section 202 of Cr.P.C. should have been taken. In the matter of National Bank of Oman (cited supra), when the matter was before the High Court, the High Court observed that the Magistrate was obliged to postpone the 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 officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding in a case where the accused is residing beyond the area in which the Magistrate exercises his jurisdiction. This view of the High Court, in that matter, was upheld by the Hon'ble Supreme Court. The Hon'ble Supreme Court observed in Para 8 of the order as under:-
"8. We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 Cr PC before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 Cr PC before issuing the process."
After referring to amendment made in Section 202 of Cr.PC. by the Code of Criminal Procedure (Amendment) Act, 2005, in this regard it was further observed in Para 11 as under:-
"11. We are of the view that the High Court has correctly held that the abovementioned amendment was not noticed by the CJM, Ahmednagar. The CJM had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 Cr PC. Since it is an admitted fact that the accused is residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the view taken by the High Court."
5. The Hon'ble Supreme Court in the matter of National Bank of Oman, (cited supra), observed that in such situation the Magistrate needs to be directed to pass fresh orders, following provisions of Section 202 of Cr.P.C. and remitted the matter to the Magistrate.
6. In the present matter also, the Magistrate has committed error in not resorting to the provisions of Section 202 of Cr.P.C. when the accused persons were residing beyond the jurisdiction of the Magistrate.
7. For the reasons stated above, I pass following order:
ORDER
(A) Criminal Application is allowed.
(B) The order of issue of process passed by Judicial Magistrate, First Class, Paranda, Dist-Osmanabad, dated 18th January 2014, in (Criminal M.A. No.9 of 2014) R.C.C. No.19 of 2014 (Sharda vs. Naresh and others), is quashed and set aside.
(C) The matter is remitted to the Judicial Magistrate, First Class, Paranda, Dist-Osmanabad.
(D) The Judicial Magistrate, First Class, Paranda, is directed to pass fresh orders after following the provisions of Section 202 of Cr.P.C.