TMI Blog2013 (10) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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. 2. 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. 3. 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 Limed as assailants. 4. With regard to the first issue, let me consider the impact of the amendment to section 202 Cr.P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self or direct investigation to be made by a police person by such other person as he thinks fit, finding out whether or not there was sufficient ground for proceeding against the accused, (notes on clause). 7. A bare reading of the aforesaid objects and reasons for the amendment and the expression 'shall' used in the amendment emphasizes the imperative legislative mandate that in order to weed out frivolous and harassive complaints instituted by unscrupulous persons filed against accused persons residing at far off places, the Magistrate, before summoning such person, ought to inquire into the case himself or direct investigation to be made by police or by such other person as the Magistrate may think fit and proper, in order to find out whether or not there is sufficient ground for proceeding against the accused person. 8. Undoubtedly, the 2005 amendment casts a mandatory duty upon the magistrate to enter upon a more searching and stricter scrutiny into the truthfulness of the allegations leveled against an accused, if such accused is residing beyond the territorial jurisdiction of the court. The obligatory nature of such duty is clearly self-evident from the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. 40. It is possibly needless to add that such observations are made keeping in mind the theory of harmonious construction. It is also necessary to hold that a provision of law should not be so interpreted so as to make it unrealistic. The manner in which Mr. Bhattacharya has sought to extend the scope and ambit of amendment of section 202 of CrPC, I am afraid, may lead to an absurd state of affairs. The basic principle of interpretation of statute is that a provision of law should not be so interpreted so as to lead to absurdity. The words and expressions used under section 202(1) of CrPC are quite plain and unambiguous. Those, in my opinion, do not deserve to be stretched to a point that the same adversely affects the interest of justice. There should be no attempt to read something more than what meets the eyes. 13. It has been argued that post the aforesaid decisions of this Court, the Apex Court has laid down in Udai Shankar Awasthi (supra) and National Bank of Oman (supra) that postponement of process under section 202 Cr.P.C. is mandatory, in the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide: Chandrapal Singh v. Maharaj Singh, 1982 (2) R.C.R. (Rent) 425 : AIR 1982 SC 1238; State of Haryana v. Bhajan Lal, 1991 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n him to carry out an enquiry or order investigation as contemplated under Section 202 Cr.P.C. before issuing the process. 9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Indian Penal Code. A Chief Judicial Magistrate took cognizance and found sufficient material against the accused persons and issued process. Such order was challenged before the Bombay High Court on twin grounds, namely, the allegations in the complaint did not prima facie constitute any offence under sections 418 and 420 of the Indian Penal Code and that there was non-compliance of the mandatory obligation to hold enquiry under section 202 Cr.P.C. before issuance of process as the accused's resided in a different State. 20. The High Court quashed the impugned proceeding on both grounds, namely, the allegations did not disclose the ingredients of the offence of cheating and that there was non-compliance of mandatory requirement of postponement of process under section 202 Cr.P.C. 21. The complainant assailed the order of the High Court before the Apex Court. The Apex Court, without expressing any opinion on the finding of the High Court that the uncontroverted allegations in the complaint did not disclose the ingredients of the offence of cheating, remanded the matter to the Magistrate for holding enquiry under section 202 Cr.P.C., without being influenced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge. 20. In Home Office v. Dorset Yacht Co., (1970) 2 All ER 294, Lord Reid said, - Lord Atkin-s speech.... is not to be treated as if it was a statute definition. It will require qualification in new circumstances. - Megarry, J. in (1971) 1 WLR 1062 observed:-One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament. - And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said: (All ER p. 761c) There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. 21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...... (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. 27. It is relevant to note that the said provision is also couched with the same imperative expression shall as the present amendment. 28. In Rosy (supra) the Apex Court while considering the duty of the Court to examine all witnesses of the complainant under section 202 Cr.P.C. in a sessions triable cases held that the non-compliance of such procedure is to be judged from the anvil of prejudice and failure of justice as provided in section 465 of the Code of Criminal Procedure. Although there was some dichotomy in the opinion of the respective Judges as to whether the said proviso is mandatory or not, the Bench was unanimous in holding the breach of such proviso must be tested on the anvil of prejudice. The Bench held as follows:- 47. Hence, what emerges from the above discussion is:- ................ (c) The irregula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Bench of this Court in the case of Willie (William) Slaney v. State of M.P., AIR 1956 SC 116. Bose, J. in his inimitable style succinctly laid down the proposition that unless breach of procedure was so vital as to cut at the root of the jurisdiction of the tribunal or was so abhorrent as what one might term violation of natural justice, the matter would resolve itself to a question of prejudice. Bose, J. enunciated law as follows:- 11. For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. That was due to the language of the Judicial Committee in 28 Ind. App. 257 (PC) (D). 12. Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice. In 28 Ind. App. 257 (PC) (D), the Privy Council said- The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would by themselves vitiate a proceeding without any test of prejudice. In respect of other procedural lapses the breach is to be judged on the touch stone of prejudice. In recent times, even breaches of principles of natural justice are tested on the anvil of prejudice to determine the extent to which it vitiates any proceeding or order. (See ECIL v. B. Karunakar, 1994 (1) S.C.T. 319 : (1993) 4 SCC 727 (para 30)) 33. Let us examine whether the procedure engrafted by 2005 amendment to section 202 Cr.P.C. is of such vital and fundamental import as to strike at the jurisdiction of the Court or affect well established notions of natural justice so that mere breach thereof, without anything more, would amount to an illegality vitiating the order issuing process. 34. Section 202 Cr.P.C. is enabling provision which is incorporated in Chapter XV of the Code. Chapter XV of the Code is entitled Complaints to Magistrate comprising the fasciculi of sections from 200 to 203 Cr.P.C. It is followed by Chapter XVI of the Code captioned Commencement of proceedings before the Magistrate which commences with section 204 Cr.P.C. relating to issuance of process. The aforesaid provisions la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether there is sufficient ground to proceed against the accused person. The 2005 amendment to section 202 Cr.P.C. therefore is to be judged from that angle. Its object and purpose is to ensure that the Magistrate while proceeding on a complaint filed against an accused residing outside its territorial jurisdiction exercises greater care and caution in examining the allegations leveled against such accused prior to arriving at a decision to proceed against him under the Code so as to prevent unnecessary harassment of individuals at the behest of unscrupulous litigants. However, notwithstanding its mandatory import the amendment cannot arise above its enabling character. For example, if in a particular case, the truthfulness of the allegations and the bona fides of the complainant are clearly established on the basis of materials on record adduced under section 200 Cr.P.C., it would be an act in futility to compel the Magistrate to embark on pre-summoning enquiry under section 202 Cr.P.C. for arriving at a conclusion which is self evident from the materials already adduced under section 200 Cr.P.C. 39. Nature of such amendment, scope and ambit of its operation clearly establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h absurd consequences. Hence, I hold as follows:- ( a) 2005 amendment to section 202 Cr.P.C. relating to postponement of process in respect of accused person residing beyond the territorial jurisdiction though couched in mandatory expression is of enabling character and does not strike at the jurisdiction or competence of the Court to try the offence nor does it relate to any facet of natural justice so that mere non-compliance thereof by itself would not vitiate the proceeding or the order issuing process against the accused person. (b) Ratios in National Bank of Oman (supra) and Udai Shankar Awasthi (supra) do not lay down any inflexible rule of law that in all cases of mere non-compliance of the aforesaid amendment without anything more, the order issuing process must be set aside irrespective of the test of prejudice as laid down in section 465 Cr.P.C. (c) Objection of such non-compliance must be raised at the earliest stage and it must be demonstrated as to how such breach has caused or is likely to cause prejudice to the accused and has occasioned failure of justice in terms of section 465 Cr.P.C. so as to vitiate the proceeding or order issuing process. Prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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