1. Complaint under Section 200 CrPC — Summons issued without following Section 202(1) CrPC for accused residing outside jurisdiction — High Court quashed summons and remanded the case. (Para 2 )
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2023 Supreme(SC) 1790
SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Odi Jerang – Appellant
Versus
Nabajyoti Baruah & Ors. - Respondents
Petition(s) for Special Leave to Appeal (Crl.) No(s). 2135/2022 (Arising out of impugned final judgment and order dated 14-02-2020 in CRLP No. 57/2019 passed by the Gauhati High Court at Itanagar)
Decided on : 22-08-2023
Important Points
Section 202(1) of the CrPC is mandatory where the accused resides outside the Magistrate's jurisdiction. Non-compliance with this provision, regardless of the stage at which the objection is raised, constitutes a failure of justice, justifying the quashing of the summons order and remand of the case.
Subject
Criminal Law - Procedural Law
Act Referred
Headnote
(A) Code of Criminal Procedure, 1973 - Section 200 and 202 - Criminal proceedings - A complaint was filed under relevant sections alleging various offences. The High Court quashed the order issuing summons due to the non-compliance with the mandatory requirement of Section 202(1), which necessitates examining witnesses before issuing summons if an accused resides outside the magistrate's jurisdiction. The court referred to previous rulings that emphasized the mandatory nature of compliance with the procedure under Section 202. (Paras 2-5)
(B) Procedural Compliance - The principle that non-compliance with mandatory procedural requirements can lead to a failure of justice was reinforced. The court noted that substantial compliance was insufficient when statutory requirements are clear and mandatory. (Paras 3 and 5)
(B) Procedural Compliance - The principle that non-compliance with mandatory procedural requirements can lead to a failure of justice was reinforced. The court noted that substantial compliance was insufficient when statutory requirements are clear and mandatory. (Paras 3 and 5)
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellant : Ms. Preeti Gupta, AOR
For the Respondent: Mr. Parthiv K. Goswami, Sr. Adv., Mr. Rahul Pratap, AOR, Ms. Atiga Singh, Adv., Mr. Abhimanyu Tewari, AOR, Ms. Eliza Bar, Adv.
Advocate Appeared:
For the Appellant : Ms. Preeti Gupta, AOR
For the Respondent: Mr. Parthiv K. Goswami, Sr. Adv., Mr. Rahul Pratap, AOR, Ms. Atiga Singh, Adv., Mr. Abhimanyu Tewari, AOR, Ms. Eliza Bar, Adv.
Table of Contents
2. Petitioner contends objection raised at a belated stage and that examining the complainant constitutes substantial compliance with Section 202(1) CrPC. (Para 3 )
3. The court observed that Section 202(1) CrPC is mandatory for accused residing outside jurisdiction and substantial compliance requires more than just examining the complainant. (Para 4 , 5 )
4. Compliance with Section 202(1) CrPC is mandatory where the accused resides outside the Magistrate's jurisdiction; failure to comply results in failure of justice. (Para 4 , 5 )
5. Special Leave Petition dismissed; High Court order of remand upheld with directions to the Magistrate to prioritize disposal. (Para 5 , 6 )
6. Is compliance with Section 202(1) of the CrPC mandatory when the accused resides outside the Magistrate's jurisdiction?
Yes, the use of the word shall in Section 202(1) CrPC and the object of the 2005 amendment make the provision mandatory in cases where the accused resides outside the jurisdiction of the learned Magistrate. (Para 4 )
7. What constitutes substantial compliance with Section 202(1) of the CrPC?
Substantial compliance may be found if the Magistrate examines the complainant and other witnesses on oath before issuing summons, rather than merely examining the complainant. (Para 4 )
8. Does the belated stage of raising an objection to non-compliance with Section 202(1) CrPC cure the mandatory requirement?
No, because the requirement is mandatory, non-compliance results in a failure of justice regardless of the stage at which the objection is raised, justifying the quashing of the summons. (Para 5 )
ORDER :
Heard the learned counsel appearing for the petitioner.
2. The petitioner is the complainant in a complaint filed under Section 200 of the Code of Criminal Procedure, 1973 (for short "CRPC") alleging offences punishable under Sections 120-B, 406, 420 read with Section 34 of the INDIAN PENAL CODE . The learned Magistrate on 2nd May, 2017 issued summons after examining the petitioner under Section 200 of CRPC. Thereafter, the case made progress and evidence of 7 witnesses was recorded before framing of charge. At that stage, the respondents-accused raised an objection on the ground that though some of the accused were residing at a place beyond the area covered by the jurisdiction of the learned Magistrate, the mandatory requirement of Section 202(1) of CRPC was not followed. On that ground, the order issuing summons was challenged by the respondents by invoking Section 482 of the CRPC before the High Court. The High Court relied upon a decision of this Court in the case of Abhijit Pawar v. Hemant Madhukar Nimbalkar & Anr, (2017) 3 SCC 538. As the mandatory requirement of sub section 1 of Section 202 of the CRPC was not followed, the High Court proceeded to quash the order issuing summons and remanded the complaint to the learned Magistrate to deal with the same from the stage of Section 202 of the CRPC.
3. The submission of the learned counsel appearing for the petitioner/complainant is that it was too late in the day that the objection regarding non-compliance with sub section 1 of Section 202 of the CRPC was raised and that also after 7 witnesses were examined by the petitioner. Her contention is that a substantial compliance with sub-section 1 of Section 202 of the CRPC has been made by examining the petitioner before issuing summons. She has placed reliance on a decision of this Court in the case of Vijay Dhanuka & Ors. v. Najima Mamtaj, (2014) 14 SCC 638. Her submission is that the objection ought not to have been entertained at such a belated stage.
4. There cannot be any doubt that in view of the use of word "shall" in sub-section 1 of Section 202 of the CRPC and the object of amendment made by the Act No. 25 of 2005, the provision will have to be held as mandatory in a case where the accused is residing at a place outside the jurisdiction of the learned Magistrate. In fact, in paragraph No.12 of the aforesaid decision relied upon by the learned counsel appearing for the petitioner, this Court held that in a case where one of the accused is a resident of a place outside the jurisdiction of the learned Magistrate, following the procedure under sub section 1 of Section 202 of the CRPC is mandatory. In the case of Vijay Dhanuka, (2014) 14 SCC 638, this Court found that before issuing summons, the learned Magistrate had examined the complainant and two other witnesses on oath and therefore, on facts, this Court found that a substantial compliance with sub-section 1 of Section 202 of the CRPC was made.
5. In this case, even substantial compliance has not been made by the learned Magistrate. It is true that evidence was recorded before charge and at that stage, an objection was raised by the respondents. Considering the mandatory nature of sub-section 1 of Section 202 of the CRPC, in the facts of this case, non-compliance thereof will result into failure of justice. Hence, we find no error in the impugned order of remand passed by the High Court. Accordingly, the Special Leave Petition is dismissed.
6. We are sure that considering the fact that complaint is of the year 2017, the learned Magistrate will give necessary priority to the disposal of the case.
7. Pending application, if any, also stands disposed of.
