Bombay High Court Upholds Mandatory Inquiry Under Section 202 Cr.P.C. for Accused Residing Outside Jurisdiction

The Bombay High Court, in a landmark decision, has reinforced the mandatory nature of conducting an inquiry under Section 202 of the Code of Criminal Procedure (Cr.P.C.) in instances where the accused is not within the court’s jurisdiction. This crucial interpretation came in the legal battle of Bansilal S. Kabra vs Global Trade Finance Limited & Anr, focusing on the application of Section 202 in complaints under Section 138 of the Negotiable Instruments Act.

The Court delved into whether the amendment in Section 202(1) of the Cr.P.C., necessitating an inquiry before issuing process when the accused is outside the jurisdiction, is mandatory or directory. This issue has been a subject of divergent opinions in judicial precedents.

The applicant, Bansilal S. Kabra, challenged the approach towards the application of Section 202 in cases under Section 138 of the Negotiable Instruments Act. The primary issue was the mandatory or directory nature of the inquiry mandated by the amended Section 202.

The Court noted, “Summoning of an accused is a serious matter requiring a careful examination of allegations and evidence.” The judgment emphasized that the magistrate’s duty is to scrutinize allegations and separate unfounded claims before issuing a process, especially when the accused is outside jurisdiction. The Court relied on the Constitution Bench of the Apex Court in suo motu Writ Petition (CRL) No.2 of 2020, which clarified the mandatory nature of inquiry under Section 202 for complaints under Section 138 of the Negotiable Instruments Act, 1881.

The Court underscored the principles behind Section 202 of the Cr.P.C. and its amendment, highlighting the necessity to prevent unnecessary harassment of the accused residing outside the jurisdiction. The judgment noted, “The inquiry must be aimed at ascertaining the truth or otherwise of the allegations.”

The Court concluded that the inquiry under Section 202 of the Cr.P.C. is mandatory in nature. This is to ensure that a prima facie case exists before issuing the process against an accused residing outside the jurisdiction. The judgment clarifies the procedural requirements for magistrates in handling such complaints.

Dated: January 16, 2024

Bansilal S. Kabra vs Global Trade Finance Limited & Anr