AMENDED PROVISION OF SECTION 202 OF THE CODE IS DISCRETIONARY AND NOT MANDATORY.

Scope and object of the amended provision of Section 202 of the Code of Criminal Procedure (hereinafter caned the Code), is the subject-matter of present discussion, which arises out of revisional application filed under Section 401 read with Section 482 of the Code, whereby and whereunder the legality and propriety of the order passed by the learned Chief Judge, City Sessions Court, in connection with Criminal revision No. 146 of 2006 is sought to be assailed by the petitioners herein.

2. Petitioners herein instituted complaint case registered as Complaint Case No. 6333 of 2006 under Sections 406/409/465/467/ 471/477 A and 201 of the Indian Penal Code against eight persons including the company.

3. Fact of the case on which the aforementioned complaint case was initiated is not relevant for the purpose of present discussion, save and except, that some of the accused persons as mentioned in the petition of complaint, are residents which falls outside for jurisdiction of the learned Chief Metropolitan Magistrate, Calcutta before who~ the complaint was instituted.

4. The learned Chief Metropolitan Magistrate on consideration of evidence recorded under Section 200 of the Code directed issuance of process against all the accused persons as arrayed in the petition of complaint. After directing issuance of process, learned Chief Metropolitan Magistrate transferred the aforementioned case to the file of learned Metropolitan Magistrate, 12th Court for proceeding further with the aforementioned case.

5. In the mean time, three petitioners namely Sushi! Kumar Daga (arrayed as accused No.2 in the petition of complaint), Krishna Damani (arrayed as accused No.3 in the petition of complaint) and Umesh Verma (arrayed as accused No.6 in the petition of complaint), moved a revisional application before the learned Chief Judge, City Sessions Court at Calcutta mainly on the ground that the aforesaid three petitioners are not residing within the territorial jurisdiction of the Court and as such the learned Court below committed an illegality in not complying the amended provision of Section 202 of the Code before issuing process against them.

6. Learned Chief Judge, City Sessions Court after hearing the contention of respective parties and by his order dated, 30-11-2006, set aside the order issuing process passed by learned Chief Metropolitan Magistrate, Calcutta and further directed the learned 12th Metropolitan Magistrate to comply with the amended provision of Section 202 of the Code at first and then to pass necessary order in accordance with law.

7. Learned Advocate General appearing for the petitioners herein assailed the order passed by the learned Chief Justice, City Sessions Court and during the course of his submission raised points of law about the object and scope of the amended provision of Section 202 of the Code. The submission of learned Advocate General was opposed by learned Sr. Advocate Mr. Pradip Ghosh, who appeared for the Opposite Parties. Both the learned senior counsels drew the attention of this Court about the scope and application of amended provision of Section 202 of the Code and in support of their contentions advanced elaborate arguments which is required to be considered in its proper perspective.

8. Section 202 of the Code is set out below;

"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, 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 Session; or