The Kerala High Court invalidated the summons and subsequent warrant issued against the accused, who were residing outside the Court's jurisdiction. This decision was made due to the summons being issued without the inclusion of the affidavit of the complainant's witnesses on record.

Justice Bechu Kurian Thomas remarked that the absence of conducting an inquiry under Section 202 would not invalidate the process, but the absence of an affidavit on record would indeed invalidate the process.

The petitioners, who were purportedly residing outside Kerala, were accused 1 to 4 before the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram, for an offense of cheque dishonor under Section 138 of the Negotiable Instruments Act. They have approached the Court to challenge the summons and warrants issued against them without conducting an inquiry under Section 202 of the Criminal Procedure Code (CrPC).

The key issue at hand was whether an inquiry under Section 202(1) of the Criminal Procedure Code (CrPC) was obligatory before summoning an accused individual who resides outside the jurisdiction of the court.

The Court noted that in the case of In Re: Expeditious Trial of Cases under Section 138 of the N.I. Act 1881, the Supreme Court had ruled that the evidence of witnesses on behalf of the complainant could be obtained through affidavit during the inquiry or trial to expedite the proceedings concerning complaints filed under Section 138 of the Negotiable Instruments Act.

Relying upon Sunil Todi and Others v. State of Gujarat and Another (2021), it was held that not conducting an enquiry under Section 202 CrPC would not vitiate the issuance of process if requisite satisfaction could be obtained from the materials available on record.

In the context of the case, the Court highlighted that no inquiry under Section 202 of the Criminal Procedure Code (CrPC) had been conducted, nor was an affidavit submitted in place of an inquiry, nor was there any scheduling for such an inquiry.

Justice Thomas stated that the Magistrate issued the summons without having an affidavit on record. The Court said, “I am of the view that since the materials on record do not indicate any affidavit having been filed in lieu of enquiry under section 202 Cr.P.C, cognizance taken by the Magistrate is wrong in law.”

Thus, the Court granted the petition and invalidated the summons and warrants issued against the petitioners. It instructed the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram, to recommence the proceedings from the point of conducting an inquiry under Section 202 of the Criminal Procedure Code (CrPC). Additionally, the Court allowed the complainant to submit an affidavit in accordance with the law.

Counsel for Petitioners: Advocates Arun Samuel, Jithin Babu A

Counsel for Respondents: Advocate M Sreekumar, Public Prosecutor Sreeja V

Case title: Carnival Films Pvt. Ltd. v State of Kerala

Case number: CRL.MC NO. 10593 OF 2023