Calcutta High Court (Appellete Side)
Smt. Nikita Hitesh Shah & Another vs The State Of West Bengal & Ors on 14 August, 2013
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION C.R.R. NO.2204 OF 2010 With C.R.A.N. NO.1377 OF 2013 In the matter of Smt. Nikita Hitesh Shah & another Vs. The State of West Bengal & Ors.
Mr. Sourav Chatterjee Mr. Chanchal Kumar Dutta Ms. Krishna Mallick ....for the petitioners Mr. Kallol Mondal.
Mr. Krishan Ray Ms. Anita Chel .... For the opposite party No.2 Heard On: 09.07.2013.
Judgment On:14.08.2013 Asim Kumar Mondal, J.: This is an application under Section 482 of the Code of criminal Procedure, 1973 for quashing the proceedings being C. Case No.6573 of 2009 pending before the Judicial Magistrate, 5th Court, Alipore, South 24-Parganas under Section 380/385 of the Indian Penal Code.
The petitioner Nikita Hitesh Shah filed the instant revisional application challenging the order dated 24th September, 2009 passed by the Ld. Magistrate 5th Court, Alipore, South 24-Parganas wherein Ld. Magistrate has passed an order issuing process against the petitioners under Section 380/385 of the Indian Penal Code.
Petitioner No.1 Nikita Hitesh Shah is the married wife of the opposite party No.2 Dr. Hitesh Shah. The petitioner No.1 stated that she was subjected to cruelty during her stay at matrimonial home and thereafter she was compelled to leave her matrimonial home on or about May, 2009. The opposite party No.2, husband of the petitioner No.1 did not provide any maintenance to the wife and as such petitioner No.1 was constrained to filed and application under Section 125 of the Code of the Criminal Procedure before the Ld. Family Court, Bandra, Mumbai. It is submitted that as a counter blast to the said application for maintenance, the present opposite party No.2 in gross abuse of the process of criminal law filed a complaint case before the Ld. Chief Judicial Magistrate, Alipore, South 24-Parganas. Ld. Chief judicial Magistrate, Alipore South 24-Parganas transferred the case to the Court of Ld. Judicial Magistrate, 5th Court, Alipore South 24- Parganas for hearing and disposal Ld. Judicial Magistrate, 5th Court, Alipore South 24-Parganas mechanically and without application of his judicial mind passed the impugned order dated 24th September, 2009 directing issuance of process against the petitioners under Section 380/385 of Indian Penal Code.
Ld. Magistrate while passing the impugned order did not comply with the mandatory provisions of Section 202 of the Code of Criminal Procedure. Admittedly, the petitioners are residing outside the Territorial Jurisdiction of the Ld. Magistrate. The order directing issuance of process against the petitioners without complying mandatory provisions under Section 202 of the Criminal Procedure Code is totally illegal and misuse of the process of law.
Being aggrieved and dissatisfied with the impugned order dated 24th September, 2009, the petitioners have come up with the present application under Section 482 of the Code of Criminal Procedure, 1973 on the grounds that the Ld. Magistrate while passing the impugned order dated 24th September, 2009 whereby issuing the process against the petitioners, did not comply the mandatory provisions of Section 202 of the code of Criminal Procedure and that such provision in the Code of Criminal Procedure clearly casts a responsibility upon the Magistrate to conduct an enquiry in the case, when the accused is residing outside the Territorial Jurisdiction of the Ld. Magistrate and as such the order impugned is illegal and liable to be set aside.
It is submitted by Mr. Sourav Chatterjee appearing on behalf of the petitioners that admitted position is that the petitioners are residing outside the Territorial Jurisdiction of the Ld. Magistrate. Ld. Magistrate ordered to issue process against them without applying the mandatory provisions under Section 202 of the Code of Criminal Procedure. Ld. Magistrate did not make enquiry into the matter either himself or did not order the concerned Police Officer or by such other persons as he thinks fit for an investigation to be made into the alleged complaint.
It is also submitted that the essential ingredients of the offence punishable under Section 380/385 of the Indian Penal Code are not made out in the instant case.
The allegations as contained in the impugned petition of the complaint and the materials on record even if are believed to be true and are taken to their entirety do not disclose the essential ingredients of offence under Section 380/385 of the Indian Penal Code as alleged against the petitioners.
Shri Chatterjee, appearing on behalf of the petitioners relied upon and referred one decisions of Supreme Court case reported in (2013) 2 Supreme Court cases 448.
Hon'ble Supreme Court held, in the said case where accused resides beyond the area over which Magistrate concerned exercises jurisdiction, it is incumbent upon the Magistrate to carry out an enquiry or order investigation under Section 202 before issuing process. The scope of enquiry under section 202 Criminal Procedure Code is restrained only to find out the truth or otherwise of the allegations made in the complaint, in order to determine as to whether process has to be issued or not. Investigation under Section 202 Criminal Procedure Code is different from the investigation contemplated under Section 156 as it is only for holding the Magistrate to decide whether or not there is a sufficient ground for him to proceeded further. The scope of enquiry under Section 202 Criminal Procedure Code is, therefore, limited to the ascertainment of true or falsehood of the allegations made in the complaining, i. On the materials placed by the complainant before the Court ii. For the limited purpose of finding out whether a prima facie for issuance of process has been made out and iii. For deciding the question purely from the point of view of complainant without at all adverting with any defence that the accused may have.
In view of the light of observations of Hon'ble Supreme Court as noted above let me examined as to whether Ld. Magistrate has passed the impugned order without applying any judicial mind as to the mandatory provisions of Section 202 of the Criminal Procedure Code.
Ld. Advocate Kollol Mondal appeared on behalf of the opposite Party No.2 in support of the impugned order, submits that Ld. Magistrate considered the materials placed by the complainant before the Court and came into the conclusion that there is a prima facie case for issuance of process and has accordingly directed to issue the process against the petitioners. The Opposite Party No.2 lodged complaint before Ld. Magistrate alleging that his wife petitioner No.1 took away her belongings which may be construed as her Sridhan properties together with many of the articles including valuable jewelleries belonging to him and documents of the opposite party No.2. At this stage, Ld. Magistrate has correctly observed that a prima facie case has made out considering the materials/evidences produced before him. So no question arises to quash the entire proceedings initiated by the opposite party No.2 against petitioner No.1.
In the instant case, it is clear from the plain reading of the impugned order passed by Ld. Magistrate 5th Court, at Alipore, dated 24th September, 2009, that Ld. Magistrate examined the complainant on the date on S.A. under Section 202 Criminal Procedure Code and considered the documents filed by the complainant. Thereafter ld. Magistrate issued process under Section 380 and Section 385 of Indian Penal Code holding at that a prima facie case has been made out. It is open to Magistrate to postpone issue of process pending further enquiry, where there is a doubt in his mind as to non-sufficiently strong case was made out to warrant action against the alleged accused person under Section 202 of Criminal Procedure Code. The provision under Section 202 of Criminal Procedure Code is not mandatory where the Magistrate is taking congnizance of an offence committed by a person residing at a place within his jurisdiction. It has made mandatory by an amendment of Criminal Procedure Code (Amendment Act), 2005. The Magistrate is now duty bound to postpone the issue of process in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction. He either more enquiry into the case himself or direct an investigation to be made by a police officer or by such other persons as he thinks fit for the purpose of deciding whether or not there is a sufficient ground for proceeding.
Admittedly, the accused persons are residing at far off places. In order to see that innocent persons are not harassed by unscrupulous complaint, this clause seeks to be amended Sub-Section 1 of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall make an enquiry into the case himself or direct investigation to be made by a police officer or by such other persons as he thinks fit, for finding out whether or not there is a sufficient ground for proceeding against the case.
In the instant case, no such enquiry is made either by Magistrate himself or by a police officer or by such other person as the Magistrate thinks fit in compliance with the mandatory provisions under Section 202 of the Criminal Procedure Code. The Magistrate simply examined the complainant on S.A. considered the evidences produced by the complainant and a formed an opinion for issuance of process, which is illegal and is liable to be set aside.
The petitioners are resident of Nabi Mumbai which does not fall within the jurisdiction of Ld. Magistrate, 5th Court, Alipore, South 24-Parganas. It was therefore incumbent upon the said Magistrate to carry out an enquiry or order for investigation as contemplated under Section 202 Criminal Procedure Code before issuing the process. Hence, the impugned order dated 24th September, 2005 passed by the Ld. Magistrate, 5th Court at Alipore, South 24-Parganas in C. case No.6573 of 2009 under Section 380/385 of the Indian Penal Code is hereby set aside. The Magistrate 5th Court, Alipore South 24-Parganas is hereby directed to pass fresh order following the provisions of Section 202 Criminal Procedure Code. Hence, the matter is remitted to the Magistrate for passing a fresh order being uninfluenced by the prima facie opinion formed by him in his earlier order and be proceeded further in the case as per procedure and law.
Thus, the criminal revision is disposed of without any costs. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
(Asim Kumar Mondal, J.)