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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Debasish Kar Gupta, Shekhar B. Saraf, JJ.
S.S. Binu – Petitioner
Versus
State of West Bengal & Anr. – Opposite-Parties
CRR 1600, 2801, 2915, 2916, 2917, 2924, 2925, 2926, 2927, 2928, 2929, 2930, 2931, 2932, 2947, 2955, 2956, 2957, 3032, 3059, 3061, 3063, 3066, 3068, 3069, 3126, 2525, 2526, 1956, 1957, 1958, 2010, 2865, 2592, 2593, 3157, 3158, 3002 of 2013, 3646 of 2014 With CRAN 3246, 3255 of 2013
Decided On : 03-05-2018
Certainly. Based on the provided legal document, here are the key points summarized:
The amendment to Section 202 of the Cr.P.C. introduced by the Criminal Procedure (Amendment) Act, 2005, explicitly makes it mandatory for a Magistrate to conduct an inquiry under Section 202 before issuing process against an accused residing outside the jurisdiction of the Court. The use of the word "shall" indicates the mandatory nature of this inquiry (!) (!) .
The purpose of the inquiry under Section 202 is to scrutinize the allegations in the complaint, prevent unnecessary harassment of innocent persons, and determine whether there is sufficient ground to proceed against the accused. This inquiry involves examining witnesses for the limited purpose of assessing the existence of a prima facie case (!) (!) (!) .
The nature of the inquiry is limited; it is not a trial but a preliminary step to decide whether the case merits issuance of process. The inquiry may include examining witnesses or directing investigation, but it is confined to ascertaining whether there are sufficient grounds to proceed (!) (!) (!) .
Non-compliance with the mandatory inquiry under Section 202 before issuing process against an accused residing outside the jurisdiction can invalidate the proceedings. In such cases, the matter should be remitted to the Magistrate for compliance with the procedural requirement, and the process can be reissued after proper inquiry (!) (!) .
Objections related to non-compliance with the amended provisions of Section 202 can be raised at any stage before the issuance of process, but raising such objections after participation in the trial or after proceedings are further advanced is generally not permissible. Timely objections are essential to ensure procedural correctness (!) (!) .
In cases involving offences under Sections 138 and 141 of the Negotiable Instruments Act, 1881, the amended provisions of Section 202 are not mandatorily applicable before issuing summons to an accused residing outside the jurisdiction. The procedural scheme under these provisions is designed to expedite proceedings and prevent unnecessary technicalities (!) (!) (!) .
The object of the amendments is to prevent false complaints and harassment of persons residing at distant locations. The legislative intent emphasizes the importance of conducting a proper inquiry before summoning an accused who resides beyond the Court's territorial jurisdiction, using the word "shall" as a mandatory directive (!) (!) (!) .
The procedural provisions are to be interpreted in a manner that promotes substantial justice, ensuring that procedural irregularities do not lead to miscarriage of justice unless they cause prejudice or deny a fair hearing. Violations that do not result in prejudice are generally considered directory (!) (!) .
The scope of inquiry under Section 202 is confined to ascertaining the truth of the allegations and whether there is sufficient ground to proceed, without delving into detailed trial proceedings. The inquiry is a screening process to prevent frivolous or vexatious cases (!) (!) .
The amendments aim to streamline proceedings, protect innocent parties from harassment, and ensure that criminal process is initiated only when there is a prima facie basis for proceeding against the accused (!) (!) .
Please let me know if you require further elaboration or specific legal advice based on these points.
Debasish Kar Gupta, J.
1. These bunch of applications filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) have been assigned to this Bench by the Hon’ble Acting Chief Justice by an order dated November 13, 2017 on the basis of a reference made by a learned Single Judge of this Court (Tarun Kumar Gupta, J.) to decide the following issues in the backdrop of the relevant provisions of law:-
“(1) Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 (25 of 2005) casts a mandatory duty upon the Magistrate to conduct an inquiry under Section 202 of the Code before issuing process under Section 204 of the Code qua an accused who resides outside the territorial limit of the Court of the said Magistrate?
(2) What will be the nature of such inquiry under Section 202 of the Code qua an accused who resides outside the territorial limit of the said Court?
(3) Whether non-compliance of such inquiry in terms of Section 202 (as amended vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will invalidate or vitiate the order of process so issued?
(4) Whether non-compliance of such inquiry in terms of Section 202 (as amended vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) can be raised only at the initial stage of the proceedings or after much deliberation as well?
(5) Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will apply in case of offences punishable under Section 138/141 of the Negotiable Instruments Act, 1881?”
2. The accused persons of the respective criminal cases bearing CRR Nos.2987 of 2013 and 2988 of 2013 filed their respective revisional applications under Section 482 Cr.P.C. for quashing their criminal proceedings arising out of 420/406/120B of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.)
3. Excepting the aforesaid applications, the rest of the revisional applications have been filed praying for quashing of the criminal cases filed under Sections 138/141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act, 1881).
4. Section 19 of the Criminal Procedure (Amendment) Act, 2005 has been promulgated by the legislature for amending sub-section (1) of Section 202 Cr.P.C. which came into force with effect from June 23, 2006. By virtue of the aforesaid amendment, the word “shall” has been inserted in subsection (1) of Section 202 Cr.P.C. After the above amendment sub-section (1) of Section 202 Cr.P.C. runs as follows:-
202. Postponement of issue of process.– (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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.. . . .
5. In all the aforesaid revisional applications a common plea has been taken alleging that the petitioners have been residing at a place beyond the territorial jurisdiction of the concerned Magistrate Court, but process were issued against them under Section 204 Cr.P.C. without making necessary mandatory inquiry
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