The Magistrate who is issuing process against the accused person, who is living beyond his jurisdiction may harass the accused person and it would be very back-breaking for the accused person to go for the court proceedings. Section 202(1) of Code of Criminal Procedure, 1973 (hereinafter mentioned Crpc) provides protection of innocent people residing at far off places from being harassed. Issuance of process should not be made as an instrument of harassment to the accused person and it should be postponed by the magistrate where the accused person is residing outside the territorial jurisdiction of the Magistrate.
Section 202 of Crpc provides as under:
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 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—
1. where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
2. 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 witness 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.
The magistrate must take into account the following considerations while ordering issuance of process:
1. the allegation in the complaint,
2. statement of the complainant examined on oath, and
3. statement of witnesses examined.
In Mehmood Ul Rehman case it was held that, the magistrate must apply his mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceedings against the accused.
In case of Vijay Dhanuka and Others v Najima Mamtaj and Others (2014) 14 SCC 638, the court held that, it is mandatory for the Magistrate to conduct an inquiry or direct an investigation before issuing process where accused is residing beyond the territorial jurisdiction of the Magistrate.
Section 202(1) of Crpc makes it obligatory upon the Magistrate that before summoning the accused who is residing beyond his jurisdiction, he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.
In the case of Birla Corporation Limited v Adventz Investments and Holding Limited (2019) 16 SCC 610, the court held that, issuance of process should not be mechanical nor it should be made as an instrument of harassment to accused. An issuance of process to accused calling upon them to appear in a criminal case is a serious matter and if there is lack of material particulars and non-application of mind by the magistrate as to materials cannot be brushed aside on the ground that it is only a procedural irregularity.
In Abhijeet Pawar v Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528, it was seen that, the superior court on being satisfied that if the mandatory requirement of Section 202, crpc were not fulfilled by the magistrate before issuing process, it can direct the magistrate to take up the matter up afresh and pass appropriate orders in compliance with Section 202, crpc.
A person summoned before criminal court as an accused is a serious matter as it can affect one’s dignity and reputation in the society. There have been many cases where the accused person is falsely implicated. These false allegations are made against person in order to harass them where they are residing far off places from where the complaint has originally been registered. The magistrate must apply his mind before issuing process that there are sufficient grounds for proceedings against the accused person. Section 202 of Crpc was amended in the year of 2005 and it inserted the word “shall” which means it is mandatory for the magistrate to conduct an enquiry/investigation before issuing process where the accused is residing beyond the territorial jurisdiction of the magistrate. This amendment was made in order to save the accused person from being falsely implicated. A person summoned before criminal court as an accused is a serious matter as it can affect one’s dignity and reputation in the society.