Sec.482 Quashing of summons issued and criminal proceedings - sec.192,200,201 and 202 Cr.P.C.-Accused out of jurisdiction does not contemplate any separate recording system of evidence before taking cognizance under sec.202 - Additional Chief Judicial Magistrate, after receiving complaint under sec.200 transferred the same to another magistrate who examined the complainant and witness and after taking cognizance issued summons to accused - Challenged on the ground that the accused are out of jurisdiction and the magistrate has to give finding whether there is a prima faice case to proceed against the accused - High court dismissed the application - Apex court held that there is no separate mode or procedure except to examine the complainant and witness under sec.200 and after taking cognizance issued summons to the accused and confirmed the order of high court and dismissed the special leave petition =
Some of the accused persons, according to the allegation, took out a pistol
from their bag and put the same over the heads of the complainant and her
husband. It is alleged that they assaulted the complainant and her husband
with fists and slaps and also abused them and coerced the complainant to
sign some papers and snatched away the suitcase containing some papers. The
aforesaid complaint was filed on 1st of October, 2011 in the Court of
Additional Chief Judicial Magistrate, Jangipur, Murshidabad. The learned
Magistrate took cognizance of the offence and transferred the case to the
Court of another Magistrate for inquiry and disposal. On receipt of the
record, the transferee Magistrate adjourned the case to 31st of October,
2011. On the said date, the complainant and her witnesses were present.
The complainant was examined on solemn affirmation and the two witnesses
namely Enamul Haque and Masud Ali were also examined. Order dated 31st of
October, 2011 shows that they were examined under Section 200 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the “Code”). The
transferee Magistrate, thereafter, adjourned the case for orders and on the
adjourned date, i.e. 15th of November, 2011, he directed for issuance of
summons against the accused persons for offence under Section 323, 380 and
506 read with Section 34 of the IPC. It is relevant here to state that in
the complaint, the residence of the accused has been shown at a place
beyond the territorial jurisdiction of the Magistrate.=
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.
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.
Said submission did not find favour with the High
Court and by common order dated 19th of February, 2013, it rejected all the
applications. It is against this common order that the petitioners have
filed these special leave petitions.=
It is evident from the aforesaid provision, every inquiry other than a
trial conducted by the Magistrate or Court is an inquiry. No specific mode
or manner of inquiry is provided under Section 202 of the Code. In the
inquiry envisaged under Section 202 of the Code, the witnesses are examined
whereas under Section 200 of the Code, examination of the complainant only
is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not
there is sufficient ground for proceeding against the accused, is nothing
but an inquiry envisaged under Section 202 of the Code. In the present
case, as we have stated earlier, the Magistrate has examined the
complainant on solemn affirmation and the two witnesses and only thereafter
he had directed for issuance of process.
In view of what we have observed above, we do not find any error in
the order impugned.
In the result, we do not find any merit in the appeals and the same
are dismissed accordingly.
2014 (March . Part) judis.nic.in/supremecourt/filename=41357
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.678-681 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) NOS.5090-5093 of 2013)
VIJAY DHANUKA ETC. …APPELLANTS
VERSUS
NAJIMA MAMTAJ ETC. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD,J.
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.
According to the allegation in the complaint petition, accused no.1
Rajdip Dey is sub-broker of Karvy Stock Broking Limited; whereas other
accused persons are its officials posted at Kolkata and Hyderabad. The
complainant alleged to be its investor and claimed to have purchased shares
from Karvi Stock Broking Ltd. through the sub-broker, accused No. 1.
According to the complaint, a dispute arose over trading of shares between
the complainant and the accused persons and to settle the on-going dispute,
the accused persons offered a proposal to the complainant who consented to
it and accordingly, on 11th of September, 2011, accused persons visited at
her residence at Raghunathganj Darbeshpara to have a discussion with the
complainant and her husband. According to the allegation, the discussion
did not yield any result and the accused persons started shouting at them.
Some of the accused persons, according to the allegation, took out a pistol
from their bag and put the same over the heads of the complainant and her
husband. It is alleged that they assaulted the complainant and her husband
with fists and slaps and also abused them and coerced the complainant to
sign some papers and snatched away the suitcase containing some papers. The
aforesaid complaint was filed on 1st of October, 2011 in the Court of
Additional Chief Judicial Magistrate, Jangipur, Murshidabad. The learned
Magistrate took cognizance of the offence and transferred the case to the
Court of another Magistrate for inquiry and disposal. On receipt of the
record, the transferee Magistrate adjourned the case to 31st of October,
2011. On the said date, the complainant and her witnesses were present.
The complainant was examined on solemn affirmation and the two witnesses
namely Enamul Haque and Masud Ali were also examined. Order dated 31st of
October, 2011 shows that they were examined under Section 200 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the “Code”). The
transferee Magistrate, thereafter, adjourned the case for orders and on the
adjourned date, i.e. 15th of November, 2011, he directed for issuance of
summons against the accused persons for offence under Section 323, 380 and
506 read with Section 34 of the IPC. It is relevant here to state that in
the complaint, the residence of the accused has been shown at a place
beyond the territorial jurisdiction of the Magistrate.
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. 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. Said submission did not find favour with the High
Court and by common order dated 19th of February, 2013, it rejected all the
applications. It is against this common order that the petitioners have
filed these special leave petitions.
Leave granted.
Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the
appellants submits that the accused persons admittedly were residing at a
place beyond the area in which the learned Magistrate exercised his
jurisdiction, hence, an inquiry under Section 202 of the Code was sine qua
non. He submits that in the present case, the learned Magistrate has not
held inquiry as envisaged under Section 202 of the Code.
Ms. Nidhi, learned counsel representing respondent no.1, however,
submits that, in fact, the learned Magistrate before issuing the process
has held an inquiry contemplated under the law and the order issuing
process cannot be faulted on the ground that no inquiry was held. In view
of the rival submissions, we deem it expedient to examine the scheme of the
Code.
In the present case, we are concerned with an order passed in a
complaint case. Section 190 of the Code provides for cognizance of
offences by Magistrates and the same reads as follows:
“190. Cognizance of offences by Magistrates.-(1) Subject to the
provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in
this behalf under sub-section(2), may take cognizance of any
offence-
(a)upon receiving a complaint of facts which constitute
such offence;
(b)upon a police report of such facts;
(c)upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub-section(1) of such
offences as are within his competence to inquire into or try.”
Section 190 of the Code finds place in Chapter XIV and from its plain
reading, it is evident that the competent Magistrate, inter alia, may take
cognizance of any offence, subject to the provisions of Chapter XIV, upon
receiving a complaint of facts which constitute an offence. 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. In the present case, on receipt of the complaint, the learned
Additional Chief Judicial Magistrate in exercise of the power under Section
192 of the Code, after taking cognizance of the offence, had made over the
case for inquiry and disposal to the transferee Magistrate. Section 12(2)
of the Code confers on Additional Chief Judicial Magistrate the same powers
as that of a Chief Judicial Magistrate. Hence, transfer of the case by the
Additional Chief Judicial Magistrate after taking cognizance of the case to
transferee Magistrate for inquiry and disposal is perfectly in tune with
the provisions of the Code. The transferee Magistrate, thereafter,
examined the complainant and her witnesses and only thereafter issued the
process.
Section 200 of the Code, inter alia, provides for examination of the
complainant on oath and the witnesses present, if any. Same reads as
follows:
1 “200. Examination of complainant. – A Magistrate taking cognizance of an
offence on complaint shall examine upon oath the complainant and
the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by
the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in the
discharge of his official duties or a court has made the
complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial
to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not re-
examine them.”
Under Section 200 of the Code, on presentation of the complaint by an
individual, other than public servant in certain contingency, the
Magistrate is required to examine the complainant on solemn affirmation and
the witnesses present, if any. Thereafter, on perusal of the allegations
made in the complaint, the statement of the complainant on solemn
affirmation and the witnesses examined, if any, various options are
available to him. If he is satisfied that the allegations made in the
complaint and statements of the complainant on oath and the witnesses
constitute an offence, he may direct for issuance of process as
contemplated under Section 204 of the Code. In case, the Magistrate is of
the opinion that there is no sufficient ground for proceeding, the option
available to him is to dismiss the complaint under Section 203 of the Code.
If on examination of the allegations made in the complaint and the
statement of the complainant on solemn affirmation and the witnesses
examined, the Magistrate is of the opinion that there is no sufficient
ground for proceeding, the option available to him is to postpone the issue
of process and either inquire the case himself or direct the investigation
to be made by a police officer or by any other person as he thinks fit.
This option is also available after the examination of the complainant
only. However, in a case in which the accused is residing at a place beyond
the area in which the Magistrate exercises his jurisdiction whether it
would be mandatory to hold inquiry or the investigation as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for
proceeding, is the question which needs our determination. In this
connection, it is apt to refer to Section 202 of the Code which provides
for postponement of issue of process. The same reads as follows:
“202. Postponement of issue of process.-(1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised
to take cognizance or which has been made over to him under
section 192, may, if he thinks fit, and shall, in a case where
the accused is residing at a place beyond the area in which he
exercises his jurisdiction postpone the issue of process against
the accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be
made-
(a)where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Sessions; or
(b)where the complaint has not been made by a Court, unless
the complainant and the witnesses present, if any, have
been examined on oath under Section 200.
(2) In an inquiry under sub-section(1), the Magistrate may, if
he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the
offence complained of is triable exclusively by the court of
Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath.
(3) If an investigation under sub-section(1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to arrest
without warrant.”
(underlining ours)
Section 202 of the Code, inter alia, contemplates postponement of the
issue of the process “in a case where the accused is residing at a place
beyond the area in which he exercises his jurisdiction” and thereafter to
either inquire into the case by himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit. In the
face of it, what needs our determination is as to whether in a case where
the accused is residing at a place beyond the area in which the Magistrate
exercises his jurisdiction, inquiry is mandatory or not. The words “and
shall, in a case where the accused is residing at a place beyond the area
in which he exercises his jurisdiction” was inserted by Section 19 of Code
of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd
of June, 2006. The aforesaid amendment, in the opinion of the legislature,
was essential as false complaints are filed against persons residing at far
off places in order to harass them. The note for the amendment reads as
follows:
“False complaints are filed against persons residing at far off
places simply to harass them. In order to see that innocent
persons are not harassed by unscrupulous persons, this clause
seeks to amend sub-section (1) of Section 202 to make it
obligatory upon the Magistrate that before summoning the accused
residing beyond his jurisdiction he shall enquire into the case
himself or direct investigation to be made by a police officer
or by such other person as he thinks fit, for finding out
whether or not there was sufficient ground for proceeding
against the accused.”
The use of the expression ‘shall’ prima facie makes the inquiry or the
investigation, as the case may be, by the Magistrate mandatory. The word
“shall” is ordinarily mandatory but sometimes, taking into account the
context or the intention, it can be held to be directory. The use of the
word “shall” in all circumstances is not decisive. Bearing in mind the
aforesaid principle, when we look to the intention of the legislature, we
find that it is aimed to prevent innocent persons from harassment by
unscrupulous persons from false complaints. Hence, 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 view of the decision of this Court in the case of Udai
Shankar Awasthi v. State of Uttar Pradesh,(2013) 2 SCC 435, this point need
not detain us any further as in the said case, this Court has clearly held
that the provision aforesaid is mandatory. It is apt to reproduce the
following passage from the said judgment:
“40. The Magistrate had issued summons without meeting the
mandatory requirement of Section 202 CrPC, though the appellants
were outside his territorial jurisdiction. The provisions of
Section 202 CrPC were amended vide the Amendment Act, 2005,
making it mandatory to postpone the issue of process where the
accused resides in an area beyond the territorial jurisdiction
of the Magistrate concerned. The same was found necessary in
order to protect innocent persons from being harassed by
unscrupulous persons and making it obligatory upon the
Magistrate to enquire into the case himself, or to direct
investigation to be made by a police officer, or by such other
person as he thinks fit for the purpose of finding out whether
or not, there was sufficient ground for proceeding against the
accused before issuing summons in such cases.”
(underlining ours)
In view of our answer to the aforesaid question, the next question
which falls for our determination is whether the learned Magistrate before
issuing summons has held the inquiry as mandated under Section 202 of the
Code. The word “inquiry” has been defined under Section 2(g) of the Code,
the same reads as follows:
“2. xxx xxx xxx
(g)”inquiry” means every inquiry, other than a trial, conducted
under this Code by a Magistrate or Court;
xxx xxx xxx”
It is evident from the aforesaid provision, every inquiry other than a
trial conducted by the Magistrate or Court is an inquiry. No specific mode
or manner of inquiry is provided under Section 202 of the Code. In the
inquiry envisaged under Section 202 of the Code, the witnesses are examined
whereas under Section 200 of the Code, examination of the complainant only
is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not
there is sufficient ground for proceeding against the accused, is nothing
but an inquiry envisaged under Section 202 of the Code. In the present
case, as we have stated earlier, the Magistrate has examined the
complainant on solemn affirmation and the two witnesses and only thereafter
he had directed for issuance of process.
In view of what we have observed above, we do not find any error in
the order impugned.
In the result, we do not find any merit in the appeals and the same
are dismissed accordingly.
………………………………………………………………J
(CHANDRAMAULI
KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
MARCH 27, 2014.
-----------------------
18
Some of the accused persons, according to the allegation, took out a pistol
from their bag and put the same over the heads of the complainant and her
husband. It is alleged that they assaulted the complainant and her husband
with fists and slaps and also abused them and coerced the complainant to
sign some papers and snatched away the suitcase containing some papers. The
aforesaid complaint was filed on 1st of October, 2011 in the Court of
Additional Chief Judicial Magistrate, Jangipur, Murshidabad. The learned
Magistrate took cognizance of the offence and transferred the case to the
Court of another Magistrate for inquiry and disposal. On receipt of the
record, the transferee Magistrate adjourned the case to 31st of October,
2011. On the said date, the complainant and her witnesses were present.
The complainant was examined on solemn affirmation and the two witnesses
namely Enamul Haque and Masud Ali were also examined. Order dated 31st of
October, 2011 shows that they were examined under Section 200 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the “Code”). The
transferee Magistrate, thereafter, adjourned the case for orders and on the
adjourned date, i.e. 15th of November, 2011, he directed for issuance of
summons against the accused persons for offence under Section 323, 380 and
506 read with Section 34 of the IPC. It is relevant here to state that in
the complaint, the residence of the accused has been shown at a place
beyond the territorial jurisdiction of the Magistrate.=
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.
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.
Said submission did not find favour with the High
Court and by common order dated 19th of February, 2013, it rejected all the
applications. It is against this common order that the petitioners have
filed these special leave petitions.=
It is evident from the aforesaid provision, every inquiry other than a
trial conducted by the Magistrate or Court is an inquiry. No specific mode
or manner of inquiry is provided under Section 202 of the Code. In the
inquiry envisaged under Section 202 of the Code, the witnesses are examined
whereas under Section 200 of the Code, examination of the complainant only
is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not
there is sufficient ground for proceeding against the accused, is nothing
but an inquiry envisaged under Section 202 of the Code. In the present
case, as we have stated earlier, the Magistrate has examined the
complainant on solemn affirmation and the two witnesses and only thereafter
he had directed for issuance of process.
In view of what we have observed above, we do not find any error in
the order impugned.
In the result, we do not find any merit in the appeals and the same
are dismissed accordingly.
2014 (March . Part) judis.nic.in/supremecourt/filename=41357
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.678-681 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) NOS.5090-5093 of 2013)
VIJAY DHANUKA ETC. …APPELLANTS
VERSUS
NAJIMA MAMTAJ ETC. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD,J.
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.
According to the allegation in the complaint petition, accused no.1
Rajdip Dey is sub-broker of Karvy Stock Broking Limited; whereas other
accused persons are its officials posted at Kolkata and Hyderabad. The
complainant alleged to be its investor and claimed to have purchased shares
from Karvi Stock Broking Ltd. through the sub-broker, accused No. 1.
According to the complaint, a dispute arose over trading of shares between
the complainant and the accused persons and to settle the on-going dispute,
the accused persons offered a proposal to the complainant who consented to
it and accordingly, on 11th of September, 2011, accused persons visited at
her residence at Raghunathganj Darbeshpara to have a discussion with the
complainant and her husband. According to the allegation, the discussion
did not yield any result and the accused persons started shouting at them.
Some of the accused persons, according to the allegation, took out a pistol
from their bag and put the same over the heads of the complainant and her
husband. It is alleged that they assaulted the complainant and her husband
with fists and slaps and also abused them and coerced the complainant to
sign some papers and snatched away the suitcase containing some papers. The
aforesaid complaint was filed on 1st of October, 2011 in the Court of
Additional Chief Judicial Magistrate, Jangipur, Murshidabad. The learned
Magistrate took cognizance of the offence and transferred the case to the
Court of another Magistrate for inquiry and disposal. On receipt of the
record, the transferee Magistrate adjourned the case to 31st of October,
2011. On the said date, the complainant and her witnesses were present.
The complainant was examined on solemn affirmation and the two witnesses
namely Enamul Haque and Masud Ali were also examined. Order dated 31st of
October, 2011 shows that they were examined under Section 200 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the “Code”). The
transferee Magistrate, thereafter, adjourned the case for orders and on the
adjourned date, i.e. 15th of November, 2011, he directed for issuance of
summons against the accused persons for offence under Section 323, 380 and
506 read with Section 34 of the IPC. It is relevant here to state that in
the complaint, the residence of the accused has been shown at a place
beyond the territorial jurisdiction of the Magistrate.
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. 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. Said submission did not find favour with the High
Court and by common order dated 19th of February, 2013, it rejected all the
applications. It is against this common order that the petitioners have
filed these special leave petitions.
Leave granted.
Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the
appellants submits that the accused persons admittedly were residing at a
place beyond the area in which the learned Magistrate exercised his
jurisdiction, hence, an inquiry under Section 202 of the Code was sine qua
non. He submits that in the present case, the learned Magistrate has not
held inquiry as envisaged under Section 202 of the Code.
Ms. Nidhi, learned counsel representing respondent no.1, however,
submits that, in fact, the learned Magistrate before issuing the process
has held an inquiry contemplated under the law and the order issuing
process cannot be faulted on the ground that no inquiry was held. In view
of the rival submissions, we deem it expedient to examine the scheme of the
Code.
In the present case, we are concerned with an order passed in a
complaint case. Section 190 of the Code provides for cognizance of
offences by Magistrates and the same reads as follows:
“190. Cognizance of offences by Magistrates.-(1) Subject to the
provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in
this behalf under sub-section(2), may take cognizance of any
offence-
(a)upon receiving a complaint of facts which constitute
such offence;
(b)upon a police report of such facts;
(c)upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub-section(1) of such
offences as are within his competence to inquire into or try.”
Section 190 of the Code finds place in Chapter XIV and from its plain
reading, it is evident that the competent Magistrate, inter alia, may take
cognizance of any offence, subject to the provisions of Chapter XIV, upon
receiving a complaint of facts which constitute an offence. 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. In the present case, on receipt of the complaint, the learned
Additional Chief Judicial Magistrate in exercise of the power under Section
192 of the Code, after taking cognizance of the offence, had made over the
case for inquiry and disposal to the transferee Magistrate. Section 12(2)
of the Code confers on Additional Chief Judicial Magistrate the same powers
as that of a Chief Judicial Magistrate. Hence, transfer of the case by the
Additional Chief Judicial Magistrate after taking cognizance of the case to
transferee Magistrate for inquiry and disposal is perfectly in tune with
the provisions of the Code. The transferee Magistrate, thereafter,
examined the complainant and her witnesses and only thereafter issued the
process.
Section 200 of the Code, inter alia, provides for examination of the
complainant on oath and the witnesses present, if any. Same reads as
follows:
1 “200. Examination of complainant. – A Magistrate taking cognizance of an
offence on complaint shall examine upon oath the complainant and
the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by
the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in the
discharge of his official duties or a court has made the
complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial
to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not re-
examine them.”
Under Section 200 of the Code, on presentation of the complaint by an
individual, other than public servant in certain contingency, the
Magistrate is required to examine the complainant on solemn affirmation and
the witnesses present, if any. Thereafter, on perusal of the allegations
made in the complaint, the statement of the complainant on solemn
affirmation and the witnesses examined, if any, various options are
available to him. If he is satisfied that the allegations made in the
complaint and statements of the complainant on oath and the witnesses
constitute an offence, he may direct for issuance of process as
contemplated under Section 204 of the Code. In case, the Magistrate is of
the opinion that there is no sufficient ground for proceeding, the option
available to him is to dismiss the complaint under Section 203 of the Code.
If on examination of the allegations made in the complaint and the
statement of the complainant on solemn affirmation and the witnesses
examined, the Magistrate is of the opinion that there is no sufficient
ground for proceeding, the option available to him is to postpone the issue
of process and either inquire the case himself or direct the investigation
to be made by a police officer or by any other person as he thinks fit.
This option is also available after the examination of the complainant
only. However, in a case in which the accused is residing at a place beyond
the area in which the Magistrate exercises his jurisdiction whether it
would be mandatory to hold inquiry or the investigation as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for
proceeding, is the question which needs our determination. In this
connection, it is apt to refer to Section 202 of the Code which provides
for postponement of issue of process. The same reads as follows:
“202. Postponement of issue of process.-(1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised
to take cognizance or which has been made over to him under
section 192, may, if he thinks fit, and shall, in a case where
the accused is residing at a place beyond the area in which he
exercises his jurisdiction postpone the issue of process against
the accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be
made-
(a)where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Sessions; or
(b)where the complaint has not been made by a Court, unless
the complainant and the witnesses present, if any, have
been examined on oath under Section 200.
(2) In an inquiry under sub-section(1), the Magistrate may, if
he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the
offence complained of is triable exclusively by the court of
Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath.
(3) If an investigation under sub-section(1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to arrest
without warrant.”
(underlining ours)
Section 202 of the Code, inter alia, contemplates postponement of the
issue of the process “in a case where the accused is residing at a place
beyond the area in which he exercises his jurisdiction” and thereafter to
either inquire into the case by himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit. In the
face of it, what needs our determination is as to whether in a case where
the accused is residing at a place beyond the area in which the Magistrate
exercises his jurisdiction, inquiry is mandatory or not. The words “and
shall, in a case where the accused is residing at a place beyond the area
in which he exercises his jurisdiction” was inserted by Section 19 of Code
of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd
of June, 2006. The aforesaid amendment, in the opinion of the legislature,
was essential as false complaints are filed against persons residing at far
off places in order to harass them. The note for the amendment reads as
follows:
“False complaints are filed against persons residing at far off
places simply to harass them. In order to see that innocent
persons are not harassed by unscrupulous persons, this clause
seeks to amend sub-section (1) of Section 202 to make it
obligatory upon the Magistrate that before summoning the accused
residing beyond his jurisdiction he shall enquire into the case
himself or direct investigation to be made by a police officer
or by such other person as he thinks fit, for finding out
whether or not there was sufficient ground for proceeding
against the accused.”
The use of the expression ‘shall’ prima facie makes the inquiry or the
investigation, as the case may be, by the Magistrate mandatory. The word
“shall” is ordinarily mandatory but sometimes, taking into account the
context or the intention, it can be held to be directory. The use of the
word “shall” in all circumstances is not decisive. Bearing in mind the
aforesaid principle, when we look to the intention of the legislature, we
find that it is aimed to prevent innocent persons from harassment by
unscrupulous persons from false complaints. Hence, 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 view of the decision of this Court in the case of Udai
Shankar Awasthi v. State of Uttar Pradesh,(2013) 2 SCC 435, this point need
not detain us any further as in the said case, this Court has clearly held
that the provision aforesaid is mandatory. It is apt to reproduce the
following passage from the said judgment:
“40. The Magistrate had issued summons without meeting the
mandatory requirement of Section 202 CrPC, though the appellants
were outside his territorial jurisdiction. The provisions of
Section 202 CrPC were amended vide the Amendment Act, 2005,
making it mandatory to postpone the issue of process where the
accused resides in an area beyond the territorial jurisdiction
of the Magistrate concerned. The same was found necessary in
order to protect innocent persons from being harassed by
unscrupulous persons and making it obligatory upon the
Magistrate to enquire into the case himself, or to direct
investigation to be made by a police officer, or by such other
person as he thinks fit for the purpose of finding out whether
or not, there was sufficient ground for proceeding against the
accused before issuing summons in such cases.”
(underlining ours)
In view of our answer to the aforesaid question, the next question
which falls for our determination is whether the learned Magistrate before
issuing summons has held the inquiry as mandated under Section 202 of the
Code. The word “inquiry” has been defined under Section 2(g) of the Code,
the same reads as follows:
“2. xxx xxx xxx
(g)”inquiry” means every inquiry, other than a trial, conducted
under this Code by a Magistrate or Court;
xxx xxx xxx”
It is evident from the aforesaid provision, every inquiry other than a
trial conducted by the Magistrate or Court is an inquiry. No specific mode
or manner of inquiry is provided under Section 202 of the Code. In the
inquiry envisaged under Section 202 of the Code, the witnesses are examined
whereas under Section 200 of the Code, examination of the complainant only
is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not
there is sufficient ground for proceeding against the accused, is nothing
but an inquiry envisaged under Section 202 of the Code. In the present
case, as we have stated earlier, the Magistrate has examined the
complainant on solemn affirmation and the two witnesses and only thereafter
he had directed for issuance of process.
In view of what we have observed above, we do not find any error in
the order impugned.
In the result, we do not find any merit in the appeals and the same
are dismissed accordingly.
………………………………………………………………J
(CHANDRAMAULI
KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
MARCH 27, 2014.
-----------------------
18
