IMPORTANT POINT
A procedural violation which does not result in denial of fair hearing or prejudice to parties must be treated to be directory.

Subrata Talukdar, J.—A common point is involved for adjudication in this batch of applications and both the parties, i.e. petitioner and complainant-Opposite Party2 are common to each of the petitions.

2. The common point of law is whether in a proceeding under Section 138 of Negotiable Instruments Act, 1881 (for short NI Act) before the Ld. Magistrate, the provisions of Section 202 CrPC are required to be mandatorily complied with or not and the manner of such compliance in the event the accused person is shown to be resident of a place beyond the territorial jurisdiction of the Ld. Magistrate.

3. In this batch of petitions dishonour of cheque has been alleged against the petitioner-accused by the OP2-complainant in the discharge of a legally enforceable debt or liability and, admittedly the petitioner-accused was the Managing Director of the firm at the relevant point of time when the offence was allegedly committed having his office or place of business within the jurisdiction of the Ld. Magistrate at Kolkata. However, during the pendency of the proceeding the petitioner-accused claimed to be a resident of Ahmedabad in the State of Gujarat and therefore Ld. Counsel for the petitioner has invoked the provisions of Section 202 CrPC qua his client. At the very outset Section 202 CrPC needs to be reproduced:-

“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 ex clusively by the Court of Session; 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 witnesses 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.”

4. Sri Ayan Bhattacharyya, Ld. Counsel for the petitioner makes the following submissions:-

a) The amendment to Section 202 CrPC as brought into effect from 23rd June, 2006 by the Code of Criminal Procedure (Amendment Act, 2005) (for short 2005 Amendment) has made it mandatory for the Ld. Court to comply with the provisions by making an inquiry himself or directing an investigation to be made by the police officer or by such other person as the Ld. Magistrate thinks fit prior to issuing process or taking cognizance. In view of the use of the word ‘shall’ (supra) introduced by the 2005 Amendment to Section 202 CrPC has a mandatory connotation and therefore to be compulsorily followed by the Ld. Magistrate in respect of any accused who is found to be residing outside and/or beyond the territorial jurisdiction of the Ld. Magistrate. The scope of such inquiry under Section 202 CrPC makes it mandatory for the Ld. Magistrate to be satisfied whether a prima facie case has been made out against the accused person deserving issuance of process or, in the likelihood that the complaint has been filed on