VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC

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VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC. [2014] INSC 222 (27 March 2014)

Facts :- Respondent 1 filed a complaint in the Court of the Additional Chief Judicial Magistrate at Jangipur, Murshidabad on 1-10-2011, who after taking cognizance of the same, transferred the complaint to the Court of the Judicial Magistrate, Jangipur, Murshidabad for inquiry and disposal.

The petitioners challenged the order issuing process in four separate applications filed under Section 482 of the Code before the High Court, inter alia, contending that the accused persons being residents of an area outside the territorial jurisdiction of the learned Magistrate who had issued summons, an inquiry within the meaning of Section 202 of the Code was necessary.

Petitioners have been summoned in a complaint case for commission of offence under Section 323, 380 and 506 read with Section 34 of the Indian Penal Code, hereinafter referred to as “the IPC”. Respondent No. 1 filed a complaint in the Court of Additional Chief Judicial Magistrate at Jangipur, Murshidabad on 1st of October, 2011, who after taking cognizance of the same, transferred the complaint to the Court of Judicial Magistrate, Jangipur, Murshidabad for inquiry and disposal. Due to the impugned orders of the Transferee Magistrate and the High Court, the complainant approached the Supreme Court through Special Leave Petition.

Judgment :- It was also contended that only after inquiry under Section 202 of the Code, the learned Magistrate was required to come to the conclusion as to whether sufficient grounds exist for proceeding against the accused persons. Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of the appellants submits that the accused persons were residing at a place beyond the area in which the learned Magistrate exercised his jurisdiction an inquiry under Section 202 of the Code was sine qua non. Section 192 of the Code empowers any Chief Judicial Magistrate to transfer the case for inquiry after taking cognizance to a competent Magistrate subordinate to him. Section 12(2) of the Code confers on the Additional Chief Judicial Magistrate the same powers as that of a Chief Judicial Magistrate. Transfer of the case by the Additional Chief Judicial Magistrate after taking cognizance of the case to transferee. In our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind 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.In the result, we do not find any merit in the appeals and the same are dismissed .