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Judgment
S.R. Brahmbhatt, J.—Heard learned Counsel for the parties. As the controversy is in narrow compass, learned Counsel appearing for the parties have requested the Court to decide the matters finally. Accordingly, Rule. Ms. Raval, learned APP waives service of notice of Rule on behalf of respondent No. 1 State and Mr. Amin, learned advocate waives service of notice of Rule on behalf of respondent No. 2. By consent, Rule is fixed forthwith.
The petitioners, by way of these petitions have principally challenged the issuance of process on the complaint made by the complainant invoking Section 138 of NI Act and there was no compliance with mandatory provisions of issuing the process u/s 202 of Cr.P.C. as respondents were not residing within the territorial jurisdiction of the learned Magistrate.
Learned Counsel appearing for the applicants relying upon the decision of the Apex Court in case of National Bank of Oman Vs. Barakara Abdul Aziz and Another, contended that the provisions of Section 202 of Cr.P.C. now is unequivocally clear qua obligation upon the Court to postpone issuance of process and make inquiry when the respondents are not residing within the territorial jurisdiction.
Mr. Sanjanwala, learned Counsel further submitted that he is not pressing other contentions at this stage as the petitions are likely to succeed only on this ground.
Mr. Amin, learned Advocate appearing for the respondent submitted that in a case of such nature, where the averments in the complaint on these are so clear, the compliance with Section 202 of Cr.P.C. for postponement of the process and inquiry shall be merely a formality, however, he could not controvert that the Apex Court decision has made it an obligatory on the part of concerned learned Magistrate to postpone the process and make inquiry and after being satisfied, the process could be issued and there is no exception to this proposition on account of nature of offence but he urges that let there be a direction to the Court for completing the inquiry within stipulated time, to which Mr. Sanjanwala could not object.
Hence, the order of issuance of process by concerned Court in all these matters is quashed only on the ground that there was non-compliance of provisions of Section 202 of the Cr.P.C. and the concerned Court is directed to complete the inquiry after following the mandate of Section 202 of Cr.P.C. as early as possible, preferable within 21 days from the date of receipt of this order. With this observation, all the petitions are disposed of. Rule is made absolute to aforesaid extent only. Direct service permitted.
Office to keep copy of this order in all the matters.