TMI Blog2008 (7) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... still proceed to the stage of Section 202 Cr.P.C. and conduct a further enquiry? What would be the content and scope of such an extended enquiry in such circumstances? When does the enquiry under Section 200 Cr.P.C. end and the enquiry under Section 202 Cr.P.C. commence? Is the boundary line between the enquiry under Section 200 Cr.P.C. and 202 Cr.P.C. so firm, definite, stable and specific? These questions arise for consideration in these cases. These questions have been raised in several similar matters. Counsel were requested to advance detailed arguments. All Counsel who wanted to be heard on the question were given opportunity to advance their arguments. Advocate D. Kishore was requested to assist the Court as Amicus Curiae also. By this common order, I propose to dispose of only Crl.M.C. No. 292 of 2008 and Crl.M.C. No. 2247 of 2008. 2. To the relevant and vital facts first. Crl.M.C. No. 292 of 2008 is filed by the accused who faces indictment in a prosecution under Section 138 of the N.I. Act. The short grievance raised by him is that no enquiry under Section 202 Cr.P.C. as amended has been conducted by the learned Magistrate before process has been conducted by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try. (emphasis supplied) 5. The procedure to be followed in respect of the complaints to the Magistrate under Section 190(1)(a) Cr.P.C. is given in Chapter XV of the Cr.P.C. and to me it appears that Section 200 and 202 Cr.P.C. as they now stand deserve to be extracted. They read as follows: Section 200 Cr.P.C. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 203 and 204 Cr.P.C. below: Section 203 Cr.P.C.: Dismissal of complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Section 204 Cr.P.C.: Issue of process - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- a) a summons-case, he shall issue his summons for the attendance of the accused, or b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (emphasis supplied) If the complaint is not dismissed under Section 203 Cr.P.C, the proceedings before the Magistrate shall take the next step to Chapter XVI and Section 204 Cr.P.C. appears in Chapter XVI. The crucial question to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is witnesses and examine them on oath . Section 202 Cr.P.C. was optional, but where the offence alleged was one triable exclusively by the Court of Session, a duty was cast on the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. That stipulation is to be viewed from the angle of providing reasonable opportunity for the accused to face the indictment for a serious offence triable exclusively by the court of session. That stipulation was made not merely to enable the Magistrate to entertain the requisite satisfaction under Section 203 or 204 Cr.P.C, but only to zealously protect the reasonable opportunity of an indictee facing indictment for a serious offence like a Sessions offence. He has a right to know what statements are likely to be given by the witnesses proposed to be examined by the complainant in the Sessions trial. An indictee facing prosecution in a Sessions offence on the basis of a police report shall always have the statements recorded by the investigating officer in the course of investigation under Section 161 Cr.P.C. to ascertain what the nature of evidence against him is likely to be. The proviso to Section 202(2) Cr.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified cognizance taken against them. The purpose of the amendment thus appears to be very clear and evident. Unjustified cognizance should not be taken against individuals. They should not be forced and compelled to face such unjustified prosecution. A Magistrate taking cognizance against such class of persons residing outside the jurisdiction must be more careful and circumspect before cognizance is taken against them and process is issued. The anxiety of the legislature is thus clearly reflected in these provisions. What remained optional is sought to be made compulsory in respect of a class of persons by the introduction of the amendment in Section 202 Cr.P.C. The notes on Clauses in the amendment bill shows that following as the concern which prompted the legislature to bring in that amendment. False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this Clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law and fact are not to be undertaken at this stage. The short question to be decided is whether there is sufficient ground to proceed against an indictee. 14. I have taken pains to understand the purpose of Section 200 and 202 Cr.P.C. as such clear understanding is essential to properly understand the scope of the amendment which an enquiry under Section 202 Cr.P.C. appears to have been compulsory. 15. It may be apposite in this context to consider when the enquiry under Section 200 Cr.P.C. would end and the enquiry under Section 202 Cr.P.C. would start. I am unable to locate any such Rubicon between the enquiry under Section 200 Cr.P.C. and the enquiry under Section 202 Cr.P.C. Under Section 202 Cr.P.C. the Magistrate himself may conduct the enquiry. He may direct a police officer or any other person to conduct an investigation. Where he himself conducts the enquiry there is virtually no difference between the enquiry under Section 200 and the enquiry under Section 202 Cr.P.C. The learned Magistrate at the stage of Section 202 Cr.P.C. will only record the sworn statements of witnesses cited but not present at the stage of Section 200 Cr.P.C. In a proceedings under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular manner, courts cannot by interpretation render such stipulation optional. It must be held that a mandatory Section 202 Cr.P.C. enquiry must be conducted and that having not been conducted, cognizance taken in Crl.M.C. 292 of 2008 is unjustified and deserves to be quashed, it is contended. 17. The Counsel relies on various decisions in support of the proposition that when the legislature mandates some act to be done in a particular manner it has got to be done in that particular manner and in no other manner at all. The requirement is mandatory and not merely directory. 18. It is unnecessary to embark on a theoretical discussion as to what is mandatory and what is directory. All stipulations of law are expected to be complied with and in that view of the matter all such stipulations are mandatory. But non compliance of every such direction which is to be followed need not necessarily result in rendering the proceedings void, illegal or unsustainable. In this view of the matter, stipulations of law the non compliance of which do not render proceedings void can be broadly stated to be only directory and those which would render the proceedings to be null, void and non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, it cannot lead to a ritualistic requirement of the court proceeding further even after it is convinced firmly on the materials available after enquiry under Section 200 Cr.P.C. that there is or there is no sufficient ground to proceed with the complaint. An interpretation, unnecessarily expansive and obliging the courts to follow ritualistic continuation of the proceedings, should not be accepted, contends the learned Counsel for the petitioner. 21. The learned Counsel for the petitioner Sri. Reji George further contends that the decisions of the Supreme Court in R.N. Jadi and Brothers v. Subhash Chandra AIR2007SC2571 and Kailash v. Nanhku AIR2005SC2441 have adverted in detail to the manner in which the expression 'shall' can be and should be interpreted when employed by the draftsman in the processual law. The Counsel refers to the following observations in para 27, 28 and 29 of Kailash v. Nanhku to contend that the expression 'shall' in Section 202 Cr.P.C. introduced by the Amendment Act of 2005 must receive a very careful consideration before concluding that the requirement is mandatory and non compliance will be fatal. 27. Three things are clear. Firstl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be wholly inequitable. ...Justice is the goal of jurisprudence - processual, as much as substantive. 29. In State of Punjab v. Shamlal Murari the Court approved in no unmistakable terms the approach of moderning into wholesome directions what is regarded as mandatory on the principle that: (SCC. 720) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v. Dominion of India the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. (emphasis supplied) The learned Counsel has also invited my attention to similar observations appearing in R.N. Jadi and Brothers v. Subhash Chandra. 22. Sri. Reji George further points out that the proviso to Section 202(2) Cr.P.C. which is also couched in similar language - by the use of the word 'shall' came to be interpreted in Rosy v. State of Keral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Sri. Reji George has placed before me a decision by Justice K. Mohan Ram of the High Court of the Madras in Crl. O.P. No. 36249 of 2007 dated 18.12.07 (it is not seen reported in any journal) in which the learned Judge has taken the view that the amended provisions contained in Section 202(1) Cr.P.C. may not apply to a prosecution for the offence punishable under Section 138 of the Negotiable Instruments. 26. It is in this context important to take note of the nature of an enquiry before issue of process which can and should take place in a prosecution under Section 138 of the Negotiable Instruments Act. The offence under Section 138 of the Negotiable Instruments Act is a special statutory offence where the ingredients are specified with precision. If a proper complaint is filed and such complaint is supported by the necessary documentary evidence as also the sworn statement of the complainant in the form of an affidavit under Section 145 of the Negotiable Instruments Act nothing more would be required ordinarily to entertain the requisite satisfaction under Section 204 Cr.P.C. The cheque has to be produced. The memo of dishonour of the cheque will have to be produced. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 faulted and the matter can be sent back to the Magistrate for conducting enquiry under Section 202 Cr.P.C. 28. I may summarise my conclusions as follows: i) Alert application of mind must be made by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 138 of the N.I. Act. ix) But ordinarily in a prosecution under Section 138 of the N.I. Act, if a proper complaint is filed supported by necessary documents and a proper affidavit is filed under Section 145 of the N.I. Act it may not be necessary for the Magistrate to proceed to hold the enquiry under Section 202 Cr.P.C. as the requisite satisfaction can be entertained at the end of the enquiry under Section 200 Cr.P.C. itself. x) But in a case where there is possibility of dispute regarding territorial jurisdiction, or dispute regarding complicity alleged with the help of Section 141 of the N.I. Act, it will be proper, necessary and advisable for the Magistrate to hold enquiry under Section 202 Cr.P.C, if requisite satisfaction is not induced by the materials placed before it under Clause (ix) above. xi) Even in such enquiry under Section 202 Cr.P.C. in a prosecution under Section 138 of the N.I. Act, it is not invariably necessary to examine a complainant and his witnesses personally on oath. They can be directed to file affidavit or additional affidavit Under Section 145 of the N.I. Act on the specific aspects where materials are found necessary or the Court entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the documents produced ' must certainly according to me have induced the requisite satisfaction in the mind of the court that the presumptions under Section 118 and 139 can be invoked at the threshold and it is not necessary to get involved in a more detailed enquiry about the existence of a legally enforcible debt/liability to discharge which the cheque is alleged to have been issued. Production of the loan documents and an enquiry into that aspect was evidently not required or necessary to entertain the threshold satisfaction that there is sufficient ground to proceed in the matter. It is trite that not a meticulous evaluation of guilt but only an enquiry as to requisite satisfaction under Section 203/204 Cr.P.C. need be undertaken at this stage. I am, in these circumstances, satisfied that it was not necessary for the learned Magistrate in Crl.M.P. No. 1867 of 2008, from which Cr.M.C. No. 2247 of 2008 arises to proceed further ritualistically to the stage of enquiry under Section 202 Cr.P.C. 31. I am, in these circumstances, satisfied that Crl.M.C. No. 2247 of 2008 deserves to be allowed. The learned Magistrate must be directed to take a-decision on the question of cogn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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