Accused Cannot Flag Non-Compliance Of S.202 CrPC To Scuttle Cheque Bounce Proceedings At Stage Of Final Arguments: J&K&L High Court
The High Court of Jammu & Kashmir and Ladakh has held that although an inquiry under Section 202 of the Code of Criminal Procedure (corresponding to Section 225 of the BNSS) is mandatory before issuance of process where the accused resides beyond the territorial jurisdiction of the Magistrate, non-compliance with that requirement cannot be invoked to derail proceedings after both parties...
The High Court of Jammu & Kashmir and Ladakh has held that although an inquiry under Section 202 of the Code of Criminal Procedure (corresponding to Section 225 of the BNSS) is mandatory before issuance of process where the accused resides beyond the territorial jurisdiction of the Magistrate, non-compliance with that requirement cannot be invoked to derail proceedings after both parties have led their evidence and the case has reached the stage of final arguments.
The Court observed that an accused who participates in the trial without objection, cross-examines witnesses, and leads defence evidence cannot, at the fag end of the proceedings, seek to invalidate the order of cognizance on the ground of procedural irregularity.
Justice Shahzad Azeem made the observations while dismissing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging an order passed by the Chief Judicial Magistrate, Shopian, taking cognizance of a complaint under Section 138 of the Negotiable Instruments Act.
This case arose when the respondent had instituted a complaint under Section 138 of the Negotiable Instruments Act alleging dishonour of cheques amounting to ₹2.10 lakh. Upon recording the statements of the complainant and one witness, the Chief Judicial Magistrate, Shopian, took cognizance of the complaint and issued process against the accused.
More than fourteen years later, the accused approached the High Court contending that since he resided outside the territorial jurisdiction of the Magistrate, the Magistrate was under a statutory obligation to postpone issuance of process and conduct an inquiry under Section 202 CrPC before taking cognizance.
During the proceedings, the High Court called for a status report from the trial court. The report revealed that the evidence of both sides had already concluded and the matter had been posted for final arguments as far back as 26 October 2017. The proceedings had thereafter remained pending owing to the continuous absence of the accused, resulting in initiation of proceedings relating to forfeiture of his bond.
Court's Observations:
Justice Azeem first reiterated that, in view of the Constitution Bench decision in In Re: Expeditious Trial of Cases under Section 138 of the N.I. Act, a Magistrate is indeed required to conduct an inquiry under Section 202 CrPC before issuing process against an accused residing beyond the Court's territorial jurisdiction.
He observed that the legislative object behind the provision is to protect persons residing at distant places from frivolous complaints and unnecessary harassment by ensuring preliminary judicial scrutiny before issuance of summons. However, the Court held that the peculiar facts of the present case disentitled the petitioner from invoking that procedural safeguard after participating in the entire trial.
The Court noted that the petitioner had never objected to the alleged non-compliance at the stage when process was issued. Instead, he appeared before the trial court, cross-examined the prosecution witnesses, led defence evidence, allowed the trial to conclude and questioned the order of cognizance only after the case had reached the stage of final arguments.
The Court observed,
"...At this highly belated stage, when the matter is awaiting its final outcome, the clock cannot be set back to the pre-cognizance state. By his active participation in the trial, the very object of Section 202 Cr. P. C. stands achieved. The objection regarding alleged non-compliance is, therefore, deemed to have been waived. Such challenge, at this stage, appears to be an afterthought." �
The Bench further held that the petitioner had failed to demonstrate any prejudice resulting from the alleged omission. After a full-fledged trial in which the accused had been afforded every opportunity to defend himself, it would be extremely difficult to establish that any failure of justice had occurred merely because an inquiry under Section 202 had not been conducted before issuance of process, the court opined.
The Court also invoked Section 465 CrPC (corresponding to Section 511 BNSS), observing that procedural irregularities do not vitiate criminal proceedings unless they have occasioned a failure of justice. It emphasised that while determining whether such failure has occurred, the Court must also examine whether the objection could and ought to have been raised at an earlier stage.
“…Even otherwise, the Petitioner has failed to demonstrate any specific prejudice caused by the alleged omission of the enquiry. After a full-fledged trial, where the Petitioner had every opportunity to defend himself on merits, it is extremely difficult to establish prejudice”
The Court additionally observed that even the order taking cognizance reflected application of mind, as the Magistrate had considered the statements of the complainant and one supporting witness before issuing process.
Before concluding, however, the Court clarified that its decision turned entirely on the peculiar facts of the case. It cautioned that the judgment should not be construed as diluting the mandatory nature of the inquiry contemplated under Section 202 CrPC (Section 225 BNSS) where an objection is raised at the appropriate stage.
Case Title: Aijaz Ahmad Bhat v. Nisar Ahmad Malik
Citation: 2026 LiveLaw (JKL) 302