2018 (5) TMI 2157 - CALCUTTA HIGH COURT

Issuance of process under Section 204 Cr.P.C. and subsequent proceedings - accused persons residing at a place beyond the territorial jurisdiction of the learned Magistrate - nature of enquiry in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - Consequence of non-compliance with such requirement - Objection may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- It is long standing settled principles of law relating to the mode of exercising a statutory power by a Court when such power is conferred for the first time upon it. Lord Jessel M.R. observed in Taylor v. Taylor, that when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed it means that no other mode is to be adopted.

Under the provisions of Section 190 Cr.P.C. the competent Magistrate may take cognizance of any offence, subject to the provisions of Chapter XIV Cr.P.C., any Chief Judicial Magistrate is empowered under Section 192 Cr.P.C. to transfer the case for inquiry after taking cognizance to a competent Magistrate subordinate to him. Needless to point out that under the provisions of sub-section (2) of Section 12 Cr.P.C., an Additional Chief Judicial Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under Cr.P.C. or under any other law for the time being in force as the High Court may direct and the transferee Magistrate is under obligation to examine the complaint and his witnesses and only thereafter to issue the process - According to the settled principles of law, the amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression "shall", looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.

Nature of enquiry to be undertaken by the learned Magistrate under sub-section (1) of Section 202 Cr.P.C. in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - HELD THAT:- Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an inquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer.

Whether non-compliance of such enquiry in terms of Sub-Section (1) of Section 202 (as amended) under Section 19 of the Criminal Procedure (Amendment) Act, 2005 will invalidate or vitiate the order of process so issued? - HELD THAT:- It has already been settled that when an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court.

Whether objections with regard to non-compliance of the amended provisions of sub-section (1) of Section 202 Cr.P.C. as incorporated by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005 may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- The satisfaction of the learned Magistrate concerned that there is a sufficient ground for proceeding with the complaint either by way of examination of complainant and the witnesses or by the enquiry contemplated under Section 202 Cr.P.C., is a condition precedent for issuing process under Section 204 Cr.P.C. It is a preliminary stage and the stage of hearing the accused would only arise at a subsequent stage provided for in the later provisions of the Cr.P.C., or in other words, up to the stage of complying with the provisions of Section 204 Cr.P.C. the accused has no role to play. The question of making an application by the accused before the Learned Magistrate concerned for dismissal of the complaint under Section 203 Cr.P.C. or a reconsideration of the material available on record is impermissible on receipt of summons approaching the Court for the reason that by then Section 203 is over and the learned Magistrate concerned has proceeded further to Section 204 Cr.P.C.

There are no hesitation to arrive at a conclusion that the first occasion for an aggrieved accused to raise objection for issuing summon against him comes after the provision of Section 204 is invoked. Since Cr.P.C. does not contemplate a review of an order passed by the learned Magistrate concerned taking cognizance of an offence issuing process without there being any allegation against accused or any material implicating the accused or any contravention of the provisions of Sections 200 and 202, the remedy lies in invoking Section 482 Cr.P.C.

The scope of application of the amended provision of Sub-Section (1) of Section 202 Cr.P.C. as enacted under Section 19 of the Criminal Procedure (Amendment) Act, 2005, in case of offences punishable under Sections 138/141 of the Negotiable Instruments Act, 1881 - HELD THAT:- Taking into consideration the non-obstante clauses used in Sections 142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage.

Thus, in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.

Application disposed off.