TMI Blog2010 (7) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... rial brought on record by the complainant. In the present case, large number of applications have been filed u/s 482 of the CrPC, alleging non-compliance of the provisions of section 202 and a relief is claimed that the process issued by the Magistrate may be quashed. If there are conflicting judgments of the same High Court, it would create uncertainty in the mind of the learned Magistrate regarding course of action which has to be followed by him and, therefore, in my view, this is an important issue which needs to be finally resolved by the Division Bench or larger Bench of this Court. Office is directed to place the judgment and order of this Court before Hon ble the Chief Justice. - V. M. KANADE, J. Mr. Shirish Gupte, Senior Counsel with Mr. Arun H. Mehta Ms Sonali Patil, Mr. Mubin Solkar i/b Akshar Law for the applicant. Mr. Yashpal Thakur i/b Paras Kuhad Associates for Respondent Mrs R. V. Newton, APP for the State. JUDGEMENT 1. Applicant has filed this application under section 482 of the Criminal Procedure Code for quashing the issuance of process by the learned Magistrate, 12th Court, Bandra, Mumbai in a complaint filed by Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Senior Counsel took me through the judgment and order in the case of Capt. S.C. Mathur s case (supra). He reiterated the contentions raised by him in Capt. S.C. Mathur s case and urged that in view of the decision given by the learned Single Judge of this Court, 5. Mr. Amit Desai, the learned Senior Counsel appearing on behalf of the Respondents in one of the cases, on the other hand, urged that taking into consideration the provisions of section 138 of the Negotiable Instruments Act, the said provision could not be said to be mandatory. He invited my attention to section 4 of the Criminal Procedure Code and submitted that sections 138 to 142 of the Negotiable Instruments Act is a self contained Code and if the said provisions are taken into consideration, this provision would fall within the exception to section 4 subclause (2). He urged that, therefore, so far as criminal cases under section 138 are concerned, it is not necessary to postpone the issuance of process and hold an inquiry again. He submitted that in a case under section 138, the Magistrate, before issuance of process, has to examine the ingredients of offence and for that purpose, it is always necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Citation 1. Shashikant Sing v/s. Tarkeshwar Sing Anr (2000) 5 SCC 783 2 Ravi Vimal Krishna v/s. State of Bihar Ors (2003) 6 SCC 401 3 Modern School v/s. Shashi Pal Sharma Ors (2007) 8 SCC 489 4 Prakash Chand Maheshwari Anr. v/s. The Zila Parishad, Muzaffarnagar Ors. (1971) 2 SCC 489 5. Narayan Rao v/s State of Andhra Pradesh AIR 1957 SC 737 6. Central Bureau of Investigation v/s R.S. Pai Anr. (2002) 5 SCC 82 7. On the other hand, one another Counsel Ms. Kanani for the applicant, appearing in one of the cases, relied upon the judgment of the learned Single Judge of this Court (Nagpur Bench) in Satish @ Rajendra s/o Harbans tiwari Ors vs. State of Maharashtra anr (Judgment in Criminal Writ Petition No.431 of 2009 decided on 7th June, 2010) wherein the learned Single Judge also had taken the view that the said pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of deciding whether the word is mandatory or directory. The Apex Court right from the judgment in State of Uttar Pradesh and others vs. Babu Ram Upadhya AIR 1961 SC 751 has accepted this proposition. SUBBA RAO J. has also observed as under:- For ascertaining the real intention of the Legislature ,............ the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the noncompliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered . Similarly, CRAWFORD in his book Statutory Construction at page 516 has observed as under:- The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaint is filed, he has to record the statement of the complainant on oath or any of his witnesses if he finds it necessary to do so. In the event, he is not satisfied, he may postpone the issuance of process and the said procedure is laid down in section 202 of Cr.P.C. Section 202(1) of Cr.P.C before it was amended, was couched in the following words:- 202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence 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 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 oa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second inquiry. In my view, taking into consideration the said provision of Cr.P.C with particular reference to sections 138 to 142 of the Negotiable Instruments Act, it cannot be said that the said provision is mandatory for the following reasons. 11. It will be necessary to briefly consider the provisions of sections 138 to 142 of the Negotiable Instruments Act. The Negotiable Instruments Act was amended and the said provisions have been incorporated and the dishonour of cheque is now made a punishable offence subject to fulfillment of conditions laid down under the said provision. Section 138 of the Negotiable Instruments Act lays down as to when the dishonour of cheque becomes an offence. For the purpose of initiating complaint under section 138, certain conditions have to be fulfilled viz (i) drawer of the cheque should issue the cheque in favour of the payee, (ii) the said cheque has to be deposited by payee or holder in due course and, thereafter, if the said cheque is dishonoured then the payee or holder in due course has to give a statutory notice to the drawer asking him to make payment within stipulated time, (iii) if no such payment is made within the stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Magistrate does not mechanically issue the process but applies his mind to the facts of the case to the averments made in the complaint to the statement made by the complainant and his witnesses under section 202 and, thereafter, if a doubt still remains in his mind, he can himself consider this by holding an inquiry in order to ascertain whether a prima facie case is made out or not against the accused who are residing beyond the jurisdiction of the Magistrate. The intention of the legislature appears to be to ensure that if the Magistrate feels it necessary some further home work should be done by him since the consequences of issuance of process in the mechanical manner can entail disastrous consequences upon the accused who is residing at far a of place. The inquiry, therefore, in my view, which has to be made in a complaint which is filed under section 138 itself is very limited to certain documents and averments in the complaint. It cannot be said that in each and every case, the Magistrate after recording the statement of the complainant and his witnesses should again postpone the issuance of process and again hold a fresh inquiry by asking the complainant to adduce fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. Therefore, though the word may used in the amended section 202(1) is followed by the word shall , the context in which the said word shall has been used, has to be taken into consideration. 14. There are number of statutes wherein a private complaint has to be filed. Various Acts such as Companies Act, Factories Act, Food and Drugs Act, Drugs and Cosmetics Act, Food Adulteration Act have made certain acts punishable and, for that purpose, private complaint has to be filed. In many of these offences, non-compliance of a particular procedure entails penal consequences. For example, non-maintaining the registers, non-filing of returns etc. In all such cases if issuance of process is postponed merely on the ground that the accused is residing outside the jurisdiction of the court even if the relevant documents are produced and statement of the complainant is made on oath at the time of verification under section 200 then the second inquiry would be a futile exercise of repeating the same thing again. Obviously, this was not the intention of the legislature when it provided that there would be postponement of issuance of process in cases where the accused are residing outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-holding of inquiry, prejudice is caused to the accused, he may direct the Magistrate to follow the procedure prescribed under the proviso. It is no doubt true that by the use of of the word shall , it appears that the language used in the proviso is of a mandatory nature. At the same time, it is procedural law and it is to be read in the context of Section 200 which enables the Magistrate to issue process without holding any inquiry and that inquiry under Section 202 is itself a discretionary one giving the option to examine or not to examine witnesses on oath. Hence, the proviso to the said subsection is required to be read accordingly though couched in mandatory terms by using the word shall . Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a case where a complaint is filed not by the public servant and where the offence is exclusively triable by the Court of Sessions, the Magistrate should follow the proviso to sub-section (2) of section 202 and call upon the complainant to produce all his witnesses and examine them on oath....................... 18. ....... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o wholesome directions to be complied with in time or in extended time. K.T. Thomas, J., after referring to section 465 of the Criminal Procedure Code has observed that one of the tests to ascertain whether the omission has occasioned failure of justice is incorporated in sub-section (2). If objection is not taken earlier the court cannot permit the party to raise it at the last stage. Thereafter, having noticed the provisions of sections 200 and 202, K.T. Thomas, J. has observed that proviso incorporated is not merely to confer discretion on the Magistrate, but a compelling duty on him to perform in such cases. In para 48, however, it is observed that if no objection is taken at an earlier stage, regarding such omission, the Court can consider how far such omission would lave led to miscarriage of justice, when such objection is taken at a later stage and a decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code. 16. So far as judgment in Rosy (supra) is concerned, it is no doubt true that the issue involved in the said decision was slightly different from the issue involved in the present case. In the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icity is sought to be imposed with the aid of S.141 Cr.P.C, the Court may ordinarily be justified, if no sufficient materials are not already available, in proceeding to the enquiry under Section 202 Cr.P.C. The crucial question is whether the requisite satisfaction can be entertained after completion of the enquiry at the stage of Section 200 Cr.P.C. If the learned Magistrate is not so satisfied, he must proceed to conduct the enquiry under Section 202 Cr.P.C. In the light of the amendment of Section 202 Cr.P.C., in respect of that class of persons those who reside outside the jurisdiction of the court, pointed application of mind must be made by the Magistrate to satisfy himself whether there is sufficient ground for proceeding or not. If the learned Magistrate is satisfied that such satisfaction can be entertained, the enquiry under section 202 Cr.P.C can be dispensed with. Superior courts will not interfere with the discretion exercised by the Magistrate at that stage merely because a ritualistic enquiry under Section 202 Cr.P.C has not been undertaken. But in a case where the court is satisfied that sufficient materials are not there, certainly cognizance taken can be faulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate is not mandatory or obligatory. The language of Section 202 as originally framed used the word, may , if he thinks fit. This language of Section 202 clearly indicates that Magistrate has discretion to enter into the field of Section 202 and there is no compulsion on the part of the Magistrate that he must enter into the field of Section 202 after recording the evidence under section 200 of the Code. Then the Calcutta High Court, in the said case, in paras 81 and 82 has mentioned the consequence of non-compliance and the said paragraphs read as under:- 82. I have already pointed out that the application of Section 202 is discretionary and when the law has not demanded or make it obligatory on the part of the Magistrate to enter into such inquiry as provided under Section 202 then in my view non-compliance of the same cannot and does not call for any interference. If the learned Magistrate has not exercised his discretion or did not think it necessary to enter into further inquiry in terms of Section 202 then there is no language either in Section 200 or Section 202 which compels him to do so. Finally, in para 88 of the said judgment, the Calcutta High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system......... 22. While interpreting the provisions of section 202 Cr.P.C., therefore, the provisions of Negotiable Instruments Act also have to be taken into consideration and if it is so done, in my view, it would reveal that though the legislature has used the word shall in the said amendment, it cannot be treated as mandatory direction but a directory one and the discretion would vest in the Magistrate to consider where in cases the accused resides outside his jurisdiction, whether it is necessary to postpone the issuance of process or not, depending on facts of each case. Mr. Shirish Gupte, the learned Senior Counsel appearing on behalf of the accused has invited my attention to the judgment of the Apex Court in K.T. Joseph (supra) 23 In my humble view, the said judgment of the Apex Court in K.T. Joseph s case (supra) does not consider the said issue and, therefore, the said judgment cannot be relied upon for the proposition canvassed by the learned Senior Counsel. It will be necessary to reproduce the said judgment from para 2 on wards:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 202(1) are mandatory or directory was not the subject matter of the case before the Apex Court. In my humble view, therefore, it cannot be said that the said judgment is a binding precedent. 24. It is quite well settled that a judgment is what it decides and if the facts in the said case are different, the said judgment cannot be considered as a binding precedent. The Apex Court in Zee Telefilms Ltd. and another vs. Union of India and others (2005) 4 SCC 649 has observed in paras 254, 255 256 as under:- Precedent 254. Are we bound hands and feet by Pradeep Kumar Biswas (2002) 5 SCC 111? The answer to the question must be found in the law of precedent. A decision, it is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well known, must be read in its entirety and the observations made therein should receive consideration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 27. So far as the judgments on which reliance is placed by Shri Zha the learned Counsel for the complainant on the question of interpretation of the words may and shall viz. Shahshikant Singh vs. Tarkeshwar Singh Anr. (2000) 5 SCC 783 , Ravi Vimal Krishna Ors vs. State of Bihar Ors. (2003) 6 SCC 540, Modern School vs. Shashi Pal Sharma Ors. (2007) 8 SCC 540 , Prakash Chand Maheshwari Anr. vs. The Zila Parishad, Muzaffarnagar Ors. (1971) 2 SCC 489, Narayan Rao vs. State of Andhra Pradesh AIR 1957 SC 737 are concerned, in all these judgments also the Apex Court, after taking into consideration the relevant words in the sections, provisions in the statute, objects and reasons, has accordingly held that use of the word shall in a provision does not necessarily make it a mandatory one. In my view, it is not necessary to refer to these individual judgments since the Apex Court has considered these cases after examining relevant provisions and, therefore, there cannot be any universal rule for the purpose of interpreting a particular word or sentence in the section. 28 For the aforesaid reasons, therefore, I am of the view that the said provision may not apply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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