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 andshall 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,–“

Whether Section 202(1) of Cr. P.C. is mandatory or not, it would be necessary to go into the object behind the amendment. Clause 19 of the draft accompanying the amendment reads as under:sss

“Clause 19. – False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause weeks to amend Sub-section (1) of Section 202 to make if obligatory upon the Magistrate that before summoning the accused 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.”

The words “if he thinks fit” occurring before postpone the issue of process give clear indication about the option before a Magistrate to issue process or postpone the issue of the same in his discretion without holding an enquiry. This discretion now would not be available with the Magistrate after amendment is made applicable. In short, the Magistrate would now be under obligation to enquire into a case either himself or direct such an enquiry to find out whether or not there was sufficient ground for proceedings against an accused where he resides at a place beyond his area of jurisdiction.”

The intention of the legislature, is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Therefore, the expression “shall” and the purpose for which the amendment has been brought, it is crystal clear that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.

Section 202(1) Cr. P.C. has two parts to it. The first part relates to a situation when the Accused is residing within his jurisdiction and the second part which is stated in the bracket and has been inserted by the Act 25 of 2005, relates to a situation when the Accused is residing outside. Thus, the enquiry as contemplated in Section 202(1) Cr. P.C. is directory when the Accused is residing within the jurisdiction and mandatory ‘in case’ the Accused is residing outside jurisdiction.

The provision of Section 202(1) Cr. P.C. is mandatory in nature as held in the case of Shivjeet Singh Vs. Nagendra Tiwary, 2010 (7) SCC 578. The relevant portion of the judgment is reproduced as under:

“11. Section 202(1) empowers the Magistrate to postpone the issue of process against the Accused and either inquiry into the case himself or direct an investigation to be made by a police officer or by such other person whom he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By amending Act 25 of 2005, the postponement of the issue of process has been made mandatory where the Accused is residing in an area beyond the territorial jurisdiction of the Magistrate concerned. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appear to the Magistrate that the offence complained of it triable exclusively by the Court of Session or where the complaint has not been made by a Court unless the complainant and the witnesses have been examined on oath under Section 200”.

The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. Therefore, the question arises what enquiry means under Section 202(1) Cr. P.C.?

The word “inquiry” has been defined Under Section 2(g) of the Code, which reads as under:

“2. (g) ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;”

The Hon’ble Supreme Court in the case of Vijay Dhanuka Vs. Najima Mamtaj reported as (2014) 14 SCC 638had held that every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. There is no specific procedureof inquiry provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas Under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged Under Section 202 of the Code.

Enquiry under Section 202(1) Cr. P.C. does not envisage a full fledge trial and at this stage the Magistrate has to satisfy himself on the basis of evidence adduced by Complainant as to whether a primafacie case is made out against proposed Accused. While exercising power under Section 202(1) Cr. P.C. the Magistrate cannot assume the role of Trial Court.

There is difference between investigation envisaged in Section 156 Cr. P.C from investigation as provided under Section 202(1) Cr. P.C. Investigation under Section 202(1) is after taking cognizance and is therefore of a limited

Nature, such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for them to proceed further against the Accused who is residing beyond the jurisdiction of concerned magistrate.

In the case of Abhijit Pawar v. Hemant Madhukar Nimbalkar, reported as (2017) 3 SCC 528 the Hon’ble Supreme Court has held as under:-

“23. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202of the Cr. P.C. was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words ‘and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction’. There is a vital purpose oe objective behind this amendment, namely, to ward off false complaints against such persons residing at far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment.”

Thus in the cases where the Accusedresides at a place beyond the jurisdiction of the Magistrate and the Magistrate issue summons without theholding enquiry in terms of Section 202(1) Cr. P.C , the summoning order is liable to be set aside.