Calcutta High Court (Appellete Side)
Shyamal Kanti Goswami & Anr vs Ashim Mukherjee on 8 October, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present:
Hon'ble Mr. Justice Joymalya Bagchi
C.R.R. No. 2001 of 2013
Shyamal Kanti Goswami & Anr.
Vs.
Ashim Mukherjee
For the petitioners : Mr. Dhananjay Banerjee
Heard on : 08.10.2013
Judgement on : 08.10.2013
Joymalya Bagchi, J. : The proceeding being complaint case No. C 2407 of 2012
pending before the learned Judicial Magistrate, 8th Court at Alipore, South 24‐
Parganas under Sections 341/323/324/352/427/384/504/506/34 of the Indian Penal
Code has been assailed.
Two issues have been raised challenging the legality of the proceeding
including the order issuing process. Firstly, enquiry under section 202 of the
Code of Criminal Procedure was not conducted in the instant case prior to
issuance of process although the petitioners were residing beyond the territorial
jurisdiction of the learned Magistrate. Reliance has been placed in the case of
National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 448, Udai
Shankar Aaasthi Vs. State of U.P., (2013) 2 SCC 435 and on an unreported
decision 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.
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.
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 named as assailants.
With regard to the first issue, let me consider the impact of the
amendment to section 202 Cr.P.C. as introduced by the Code of Criminal
Procedure (Amendment Act) 2005, (Act 25 of 2005). The said amendment came
into force with effect from 26.03.2006 and amended section 202 Cr.P.C., 1973
reads 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 Session; 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.
(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.
(3) If an investigation under sub‐section (1) is made by a person not
being a police officer, he shall have for that investigation all the
powers conferred by this Code on an officer‐ in‐ charge of a police
station except the power to arrest without warrant."
(the underlined portion in italics was incorporated by the
aforesaid amendment)
The notes on clause setting out the objects and reasons of the aforesaid
amendment is as follows:
"Objects and Reasons of 2005 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
inquire into the case himself 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)."
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.
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 expression 'shall' used in the said
amendment and also from the statement of objects and reasons for the said
amendment.
The moot question which falls for decision is whether non‐compliance of
such procedure would by itself vitiate the proceeding and/or the order issuing
process against the accused or not.
The aforesaid provision of law fell for decision before a single judge of this
court in Rameshwar Jute Mills Ltd. v. Sushil Kumar Daga & Ors., 2009 (2) CHN
138.
After analyzing the scope and ambit of sections 200, 202, 203 and 204
Cr.P.C. contained in Chapter XV of the Code, the learned Judge held as follows:
"87. In view of my above discussion the issue as to scope and
object of amended provision of section 202 is answered as
follows:
1. The application of section 202 of the Code is discretionary
and the same will come into operation only in cases where
the Magistrate in his discretion decides to postpone the
issue of process.
2. In cases where the learned Magistrate postpones the issue
of process then it is mandatory on his part to inquire in
case of accused persons who are residing outside the
jurisdiction of the Court."
Similarly, in Biswanath Maheswari v. Navbharat Tea Processing Private
Limited & Anr., 2010 (2) CHN Cal 257, another learned Single Judge of this
Court interpreting the aforesaid amendment to section 202 Cr.P.C. held as
follows:
"39. After taking into consideration the various provisions under
Chapter XV of the Code, I do not find any reason as to why a
learned Court if prima facie satisfied as to the existence of an
offence cannot straightaway proceed from section 200 to section
204 of CrPC. I do not think it necessary to compulsorily pass
through section 202 so as to reach either section 203 or section 204
of CrPC. It is only when a Court of Magistrate fails to satisfy
itself regarding the existence of a prima facie case but does not
think that such a case deserves to be dismissed then and there
under section 203 of CrPC, a Court can postpone the issue of
process and direct further investigation under section 202(1) of
CrPC. And, if the accused person resides at a place outside the
territorial jurisdiction of the Court of Magistrate, it is for the said
learned Court to enquire 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.
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."
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 event an accused resides beyond the territorial jurisdiction of
the learned Magistrate, and, hence, the order issuing process in such cases ought
to be set aside on the score of non‐compliance of such procedure alone.
Let me examine the ratios laid down in Udai Shankar Awasthi (supra) and
National Bank of Oman (supra).
In Udai Shankar Awasthi (supra) the Apex Court had the occasion of
dealing with the aforesaid procedure under section 202 Cr.P.C. and held as
follows :
"40. The Magistrate had issued summons without meeting
the mandatory requirement of Section 202 Cr.P.C., though
the appellants were outside his territorial jurisdiction. The
provisions of Section 202 Cr.P.C. were amended vide
Amendment Act 2005, making it mandatory to postpone
the issue of process where the accused resides in an area
beyond the territorial jurisdiction of the Magistrate
concerned. The same was found necessary in order to
protect innocent persons from being harassed by
unscrupulous persons and making it obligatory upon the
Magistrate to enquire into the case himself, or to direct
investigation to be made by a police officer, or by such
other person as he thinks fit for the purpose of finding out
whether or not, there was sufficient ground for proceeding
against the accused before issuing summons in such cases.
(See also: Shivjee Singh v. Nagendra Tiwary, AIR 2010 SC
2261; and National Bank of Oman v. Barakara Abdul Aziz,
JT 2012 (12) SC 432).
However, it appears from the facts of the said case that the impugned
proceeding was quashed on the ground that earlier complaints on the self‐same
facts had been dismissed and such fact was suppressed at the time of institution
of the subsequent complaint which was instituted after inordinate delay. In this
factual backdrop, the Apex Court quashed the impugned proceeding as an abuse
of process of Court observing as follows :
"46. In Kishan Singh v. Gurpal Singh, AIR 2010 SC 3624,
this court while dealing with a case of inordinate delay in
launching a criminal prosecution, has held as under: (SCC
P.782, para 22)
"22. In cases where there is a delay in lodging a FIR,
the Court has to look for a plausible explanation for
such delay. In absence of such an 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,
AIR 1982 SC 1238; State of Haryana v. Bhajan Lal,
AIR 1992 SC 604; G. Sagar Suri v. State of U.P, AIR
2000 SC 754; and Gorige Pentaiah v. State of A.P.,
(2008) 12 SCC 531)."
47. The instant appeals are squarely covered by the
observations made in Kishan Singh (Supra) and thus, the
proceedings must be labeled as nothing more than an
abuse of the process of the court, particularly in view of
the fact that, with respect to enact the same subject matter,
various complaint cases had already been filed by
respondent No.2 and his brother, which were all dismissed
on merits, after the examination of witnesses. In such a fact‐situation, Complaint Case No. 628 of 2011, filed on 31.5.2001 was not maintainable. Thus, the Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to the appellants."
An analysis of the aforesaid ratio makes it amply clear that the impugned proceeding was quashed as its belated institution by suppressing dismissal of earlier complaints on self‐same facts amounted to an abuse of process of Court. It cannot be said that the proceeding was quashed for mere non‐compliance of section 202 Cr.P.C., 1973. In fact, in the said report though the Apex Court held that the 2005 amendment was mandatory in nature, it did not make any observation as to the consequences of its non‐compliance. It is settled law that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. (AIR 1968 SC 647, para 13) It is true that in National Bank of Oman (supra) the Apex Court set aside order issuing process upon an accused residing beyond the territorial jurisdiction of the Magistrate on the ground of enquiry under section 202 Cr.P.C. had not been held prior to issuance of process. The Court held as follows :
"8.We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 CrPC before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 CrPC 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 all adverting to any defence that the accused may have.
10. Section 202 CrPC was amended by the Code of Criminal Procedure (Amendment) Act, 2005 and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,"
The notes on clauses for the abovementioned amendment read as follows:
"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 direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."
The amendment has come into force w.e.f. 23‐6‐2006 vide Notification No. S.O. 923(E) dated 21‐6‐2006.
11. We are of the view that the High Court has correctly held that the abovementioned amendment was not noticed by the CJM, Ahmednagar. The CJM had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 CrPC. Since it is an admitted fact that the accused is residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the view taken by the High Court.
12. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 CrPC. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 CrPC, within two months from the date of receipt of this order."
However, the factual context in which such observations were made require to be examined. In National Bank of Oman (supra), the complainant instituted a petition of complaint against the accused person through its power of attorney for commission of offence punishable under Sections 418 and 420 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 accuseds resided in a different State.
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.
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 finding of the High Court that the complaint did not disclose any offence of cheating, as such mandatory procedure had not been complied with prior to issuance of process. The Apex Court clarified that though order issuing process may be set aside, the entire proceeding could not have been quashed on such score. It appears that the Apex Court had arrived at such finding in the factual backdrop that the Superior Court (i.e. the High Court) had expressed doubt as to the correctness of the subjective satisfaction of the Magistrate to proceed against an accused (residing at a far off place) on the basis of uncontroverted allegations in the complaint and initial depositions recorded at the stage of 200 Cr.P.C. 1973. In this context, the Apex Court held that the order issuing process against the accused is liable to be set aside for not complying with the obligatory requirement of holding enquiry under section 202 Cr.P.C. and remanded the matter for holding such enquiry uninfluenced by the finding of the High Court. In my humble view, in the aforesaid decision the issue as to consequence of non‐ compliance of section 202 Cr.P.C., 1973 is cases where there is no realm of doubt that the allegations in the complaint and initial depositions recorded under section 200 Cr.P.C. discloses ingredients of the offence and the complicity of the accused therein did not fall for decision.
In Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr., (2002) 3 SCC 496, the Apex Court held as follows :
"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclidʹs theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed: (All ER p. 14C‐D) ʺThe matter 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.ʺ
20. In Home Office v. Dorset Yacht Co., (1970) 2 All ER 294, Lord Reid said, ʺLord Atkinʹs speech..... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.ʺ Megarry, J. in (1971) 1 WLR 1062 observed: ʺOne must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.ʺ And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said: (All ER p. 761c) ʺThere 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.ʺ
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
ʺEach case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.ʺ ...............................
ʺPrecedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.ʺ Hence, it would be incorrect to say that National Bank of Oman (supra) lays down an inflexible rule of law that in all cases order issuing process upon an accused residing beyond territorial jurisdiction of the Magistrate has to be set aside for non‐compliance of section 202 Cr.P.C. (as amended) even if there is no doubt that allegations in the complaint and initial depositions recorded under section 200 Cr.P.C. prima facie establish with sufficient clarity the contours of the offence and the complicity of the offender.
The unreported decision of this Court dated 10th April, 2013 in C.R.R. 179 of 2013 is a decision rendered on the facts of that case and no law has been laid down therein.
It is apposite to note that in spite of its mandatory import the 2005 Amendment does not lay down the consequences of its breach. It is settled law that whenever there is a breach of procedural law, the consequence of such breach if not statutorily ventilated, the same must always be adjudged on the anvil of prejudice to the affected party.
For example, while dealing with the effect of non‐compliance of the proviso to subsection (2) of section 202 Cr.P.C. in sessions triable cases, the Apex Court applied the test of prejudice in Rosy Vs. State of Kerala, AIR 2000 SC 637 and in Shivjee Singh Vs. Nagendra Tiwary & Ors., (2010) 7 SCC 578.
Proviso to sub‐section (2) of section 202 Cr.P.C., reads as follows :
"202. (1) ......................
(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."
It is relevant to note that the said provision is also couched with the same imperative expression "shall" as the present amendment.
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 irregularity or non‐compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later." This view was reiterated in Shivjee Singh Vs. Nagendra Tiwary & Ors., (2010) 7 SCC 578 as follows :
"22. The use of the word `shallʹ in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so."
Effects of errors, omissions or irregularities in a proceeding under the Code is to be judged on the anvil of section 465 Cr.P.C. Section 465 Cr.P.C. reads as follows :‐ "Section 465.‐ Finding or sentence when reversible by reason of error, omission irregularity.
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." Effect of breach of procedural law under the Code fell for decision before a Constitution Bench of this Court in the case of Willie (William) Slaney Vs. 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‐ ʺThe 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 contravention of the Code comes within the description of error, omission or irregularityʺ. This was examined and explained in Abdul Rahman v. Emperor, AIR 1927 PC 44 at p. 49 (F) as follows:
ʺThe procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accusedʺ.
13. In our opinion, the key to the problem lies in the words underlined. Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well‐establisbed notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was ‐occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.
14. This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of latter‐ day criminal jurisprudence in England as well as in India. The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer Justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered."
It is therefore clear that only breaches of procedure which are so vital and fundamental so as to go to the root of jurisdiction or which affects well established notions of natural justice 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 Vs. B. Karunakar, (1993) 4 SCC 727 (para 30)] 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.
Section 202 Cr.P.C. is enabling provision which is incorporated in Chapter XV of the Code. Chapter XV of the Code is entituled "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 lay down the procedure to be followed by a Magistrate once he takes cognizance of any offence on receiving a complaint of facts consisting such offence under section 190(1)(a) Cr.P.C. Upon taking cognizance, the Magistrate is required to examine the complainant and his witnesses on oath and reduce substance of such examination in writing under section 200 Cr.P.C.
Thereafter, on examination of the allegations in the complaint and the statements of the complainant and his witnesses on oath recorded under section 200 Cr.P.C., if the Magistrate is satisfied that there is sufficient ground to proceed against the accused person under the Code, he shall issue process under section 204 Cr.P.C against the accused. In the alternative, if on such materials he is satisfied that there is no sufficient ground to proceed against the accused person, the Magistrate shall after recording reasons in support thereof, dismiss the complaint.
However, on the basis of the complaint and the materials on record under section 200 Cr.P.C., the Magistrate is unable to form an opinion either way, he may postpone the issuance of process and hold an enquiry or investigation as envisaged under section 202 Cr.P.C., 1973 for arriving at a decision as to whether there is sufficient ground to proceed against the accused person.
The scope of such pre‐summoning enquiry under section 202 Cr.P.C. is limited in nature. The purpose of such enquiry is to find out whether there are some materials in support of the truthfulness of the allegations in the complainant so as to justify the issuance of process. At this stage, the Magistrate is not required to come to a conclusion whether the prosecution may end in conviction nor is he required to hear the version of the accused person. [See S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492, para 22, and Manharibhai Muljibhai Kakadia & Anr.
VsShaileshbhai Mohanbhai Patel & Ors. (2012) 10 SCC 517, para 20] From the aforesaid scheme of the Code it appears that section 202 is, in fact, an enabling provision so as to empower the Magistrate to hold an effective enquiry into the truthfulness of the allegations made in the complaint for the purpose of arriving at the requisite satisfaction as 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. Nature of such amendment, scope and ambit of its operation clearly establish that although the same is couched in mandatory terms it does not touch upon the jurisdiction or competence of the Court in trying the offence nor is it relatable to any facet of natural justice. In the light of the law laid down in Willie (William) Slaney (supra) the impact of such procedural lapse must be judged on the anvil of prejudice as laid down in section 465 of the Code of Criminal Procedure.
It must also be borne in mind that procedural law is the hand maiden of justice. It cannot be interpreted in a manner so as to defeat the cause of justice resulting in manifest absurdity or futility.
In American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. & Anr., reported in AIR 1986 SC 137 the Hon'ble Apex Court held :
"It is well‐known principle of interpretation of statute that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly."
Similarly, in Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. Vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 the Apex Court held as follows :
"82. .............It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous‐lex neminem cogit ad vana seu inutilia‐the law will not force anyone to do a thing vain and fruitless......."
It would be an act in futility to call upon the Magistrate to postpone process and hold an enquiry under section 202 Cr.P.C., in cases where the allegations in the complaint and initial depositions recorded under section 200 Cr.P.C. leave no doubt in the mind of a man of ordinary prudence that there is sufficient ground to proceed against the accused person. In such cases, to set aside the order issuing process on the mere plea of non‐compliance of section 202 Cr.P.C. without anything more, would not only amount to an act of futile superfluity but would also result in undue delay in commencement of trials burdening the dockets of the Magistrate with meaningless enquiries only to arrive at foregone conclusions defeating the ends of justice. The amendment was certainly not enacted to give rise to such 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. Prejudice to an accused is essentially a question of fact and must be judged on the facts and circumstances of each case. In the instant case I find that the complainant is the victim of assault and has named the petitioners as his assailants. The version of the complainant is supported by his witness Babai Lama who is an eye witness. Reading the uncontroverted allegations in the complaint in the light of the consistent initial depositions of the complainant and his witness, as aforesaid, it appears that there was sufficient materials on record to proceed against the petitioners in the instant case. The petitioner resides at an adjoining district not very far off from the place where the Court of the learned Magistrate is situated. In the aforesaid factual backdrop, it cannot be said that any prejudice has been caused to the petitioners by failing to hold enquiry under section 202 Cr.P.C. prior to issuance of process or that such non‐compliance has occasioned failure of justice in terms of section 465 Cr.P.C. When the contours of the offence and the role of the petitioners are well established, it would be futile and result in unnecessary delay defeating ends of justice to set aside the process and direct holding of enquiry under section 202 Cr.P.C. particularly when non‐compliance thereof has not occasioned any failure of justice. The other issue that the witness examined under section 200 Cr.P.C. did not fall among those enumerated in the petition of complaint, in my view, does not affect the jurisdiction of the Court to examine such witness produced by the complainant in support of his case. It is not the requirement of law that names of all witnesses are to be exhaustively stated in the petition of complaint. Examination of a witness produced by the complainant, though not named in the petition of complainant, cannot be said illegal in law. The petitioners would get an opportunity to cross‐examine such witness in the course of enquiry under section 244 Cr.P.C. and accordingly I am of the view that examination of such witness though not in named in the petition of complaint does not cause any prejudice to them in any manner whatsoever.
For the aforesaid reasons, I do not find any merit in the instant application.
The application is accordingly dismissed.
(Joymalya Bagchi, J.)