Non-compliance with the mandatory requirement of holding an enquiry under Section 202 CrPC prior to issuance of process does not vitiate the proceeding or order issuing process against the accused unless it causes prejudice to the accused or results in failure of justice.

Joymalya Bagchi, J.

The proceeding being complaint case No. C 2407 of 2012 pending before the learned Judicial Magistrate, 8th Court at Alipore, South 24-Parganas under Sections 341, 323, 324, 352, 427, 384, 504, 506, 34 of the Indian Penal Code has been assailed.

2. Two issues have been raised challenging the legality of the proceeding including the order issuing process. Firstly, enquiry under section 202 of the Code of Criminal Procedure was not conducted in the instant case prior to issuance of process although the petitioners were residing beyond the territorial jurisdiction of the learned Magistrate. Reliance has been placed in the case of National Bank of Oman v. Barakara Abdul Aziz, (2013)2 SCC 448, Udai Shankar Aaasthi v. State of U.P., 2013(2) R.C.R.(Criminal) 503 : 2013(2) Recent Apex Judgments (R.A.J.) 538 : (2013)2 SCC 435 and on an unreported decision of this Court dated 10th April, 2013 in C.R.R. No. 179 of 2013. It is further submitted that apart from the complaint only one Babai Lama was examined under section 200 of the Code of Criminal Procedure although he was not cited as witness in the petition of complaint.

3. I have considered the submissions in the light of the materials on record. I find that the petition of complaint was filed against seven accused persons. It is alleged in the petition of complaint that the petitioners had physically assaulted the complainant in broad daylight. The complainant examined himself under section 200 of the Code of Criminal Procedure naming the petitioners and one Manoranjan Das as his assailants. Such version was supported by one Babai Lama who saw the incident and rushed to the spot where the assailants ran away.

4. In view of the aforesaid materials the learned Magistrate issued process under sections 323, 504, 341 IPC against the petitioners and the accused Manoranjan Das but dismissed the complaint with regard to other accused persons who had not been named as assailants.

5. With regard to the first issue, let me consider the impact of the amendment to section 202 Cr.P.C. as introduced by the Code of Criminal Procedure (Amendment Act) 2005, (Act 25 of 2005). The said amendment came into force with effect from 26.03.2006 and amended section 202 Cr.P.C., 1973 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 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."

6. (the underlined portion in italics was incorporated by the aforesaid amendment)

7. The notes on clause setting out the objects and reasons of the aforesaid amendment is as