Affidavit in lieu of 202 (1) CrPC inquiry
In cheque cases, when the accused resides beyond the territorial jurisdiction of the court, the inquiry to be conducted under Section 202(1) of the Code of Criminal Procedure (CrPC), shall be conducted on affidavit, on receipt of complaints under Section 138 of the Negotiable Instruments Act (NI Act) to arrive at sufficient grounds to proceed against the accused (See the Constitutional Bench judgement: In re: Expeditious Trial of Cases Under Section 138 NI Act).
The 202(1) CrPC inquiry is mandatory on a private complain. As the complaint on a cheque dishonour case is treated as a private complaint, an affidavit in lieu of 201(1) inquiry is indispensable.
Magistrate may inquire or scrutinize documents
The Section 202 (1) of the CrPC confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out.
The amendment to Section 202 of the CrPC with effect from 23.06.2006 made it mandatory for the Magistrate to conduct an inquiry before issue of process, in a case where the accused resides beyond the area of jurisdiction of the court.
Magistrate to conduct inquiry or examine documents
In normal course, an inquiry under Section 202 (1) of the CrPC shall be conducted on receipt of complaints under Section 138 of the NI Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.
For the conduct of inquiry under Section 202 (1) CrPC, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.
Purpose of 202(1) inquiry by the Magistrate
The object behind the amendment which ensures that persons outside the territorial jurisdiction of the court are not unnecessarily harassed and drawn to courts on flimsy, frivolous, false and untenable charges and this requirement of law shall be observed mandatorily (See paragraph 18 of the judgment in Nandakumar v Nandakumaran Nair [ 2020:KER:24993 : Crl MC No 4115 of 2017].
The 202(1) CrPC inquiry is a feature of private complaint
The inquiry under Section 202(1) CrPC is mandatory only in the case of a private complaint, as is stated in Ilangeswaran v State of Kerala [ Crl MC No 4528 of 2014].
If the cognizance is taken based on a police report u/s 173(2) CrPC, the Magistrate can take cognizance without conducting 202(1) inquiry. If the police report is on a non-cognizable offence then it is a deemed complaint and 201(1) CrPC inquiry is necessary, says the High Court of Kerala in Mohammed Saheer v State of Kerala [2023:KER:68108].
If the
Taking cognizance & sending summons is wrong
In Carnival Films Pvt. Ltd. v State of Kerala [2024 KER 25626], the High Court of Kerala says without ensuring the filing of the affidavit under Section 202(1) CrPC when the accused are residing outside the court’s jurisdiction, the Magistrate taking cognizance, and issuing summons in cheque case is wrong in law..
In the above case, the High Court of Kerala quashed the summons, set aside the warrant and remanded the case back to the Magistrate Court 12 at Thiruvananthapuram for fresh taking of cognizance, as stipulated in law.
Reference
- In re: Expeditious Trial of Cases Under Section 138 NI Act
- Carnival Films Pvt. Ltd. v State of Kerala [2024 KER 25626]
- Ilangeswaran v State of Kerala [ Crl MC No 4528 of 2014]
- Nandakumar v Nandakumaran Nair [ 2020:KER:24993]
- Mohammed Saheer v State of Kerala [2023:KER:68108]
- Practice directions in NI 138 cases of High Court of Andhra Pradesh
