Calcutta High Court (Appellete Side)
Jaharlal Roy & Ors vs Satyabala Panja & Anr on 9 September, 2013
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
C.R.R. NO.1067 OF 2012.
THE MATTER OF:
Jaharlal Roy & Ors.
...Petitioners.
Vs.
Satyabala Panja & Anr.
...Opposite Party
Mr. Pradip Ray
Mr. Ujjal Ray
...for the petitioners.
None appears for the respondent.
Heard On: 06.08.2013 Judgment On: 09.09.2013 Asim Kumar Mondal, J.: The petitioner has preferred the present revisional application challenging the order passed by Ld. Judicial Magistrate, 3rd Court, Katwa, Burdwan dated 6th February, 2012 directing the issuance of summons against the petitioner under Sections 448, 323, 506 of the Indian Penal Code.
The opposite party filed a complaint under Section 156(3) of the Code of Criminal Procedure before the Additional Chief Judicial Magistrate, Katwa, Burdwan against the petitioner alleging that, they committed the offence under Sections 448, 323, 506 of the I.P.C. Ld. Additional Chief Judicial Magistrate, Katwa after taking cognizance, transferred the case to Ld. Judicial Magistrate, 3rd Court, Katwa for disposal.
Ld. Judicial Magistrate on February 6, 2012 examined the complainant under Section 200 of the Code of Criminal Procedure and found a prima facie case has been made out. He directed for issuance of summons upon the petitioner fixing a date for appearance.
The petitioner/accused person being aggrieved and dissatisfied with the order dated February 6, 2012 has made the present application u/S 482 of the Code of Criminal Procedure for quashing of the proceedings being case No.332 C/11 under Sections 448, 323, 506 of the Indian Penal Code pending before Ld. Judicial Magistrate, 3rd Court, Katwa, Burdwan on the ground that Ld. Magistrate passed the order impugned illegally, without considering the mandate of the provision and without applying the judicial mind. As such the proceeding initiated against the petitioner is liable to be quashed.
Ld. Advocate Ujjal Roy appearing on behalf of the petitioner submits that the opposite party has instituted the proceeding being No.332C/11 out of grudge. The proceeding is nothing but an attempt to the criminal liability from her shoulder.
She back ground of the complaint lodged by the opposite party is that petitioner No.3 was given marriage to one Amit Kumar Hazra. Petitioner No- 3 lodged complaint u/s 498A and 406 of Indian Penal Code against the members of her in-law's house including opposite party No.1 Police submitted charge sheet against the accused person. Petitioner No.3 also filed one case u/S 125 of the Criminal Procedure Code.
It is alleged and submitted by Ld. Advocate appearing on behalf of the petitioner that opposite party No.1 has falsely filed the complaint. It is beyond imagination that petitioner would travelled a long way for Chinsurah, Hooghly to Mangalkot of Katwa, to committed such offences as alleged Admittedly, the petitioner resides beyond the jurisdiction of Ld. Magistrate at katwa. Ld. Magistrate did not follow the mandate under Section 200 of the Code of Criminal procedure, before passing order of issuance of summons. From the order impugned it is clear that Ld.Magistrate acted mechanically without applying his mind as to the proposition of law and also the facts and circumstances of the alleged complaint.
Ld. Advocate appearing on behalf of the petitioner relying upon the ratio of judgment of Hon'ble Apex Court reported in (1998) 5 SCC 749 submitted that Ld. Magistrate has to examine the nature of allegation make in the complaint and evidence hold oral and documentary in support that of and would consider, whether that be sufficient for the complaint to ksucceed in bringing house the charge. Magistrate cannot be a silent spectator at the time of recording of preliminary evidence.
He further submits that, Ld. Magistrate has failed to comply the mandate under Section 202 of the Code of Criminal Procedure as amended in the year 2005. It is obligatory on the part of the Magistrate, that he/she shall, in a case where the accused is residing at a place beyond the area in which he/she exercises his/her jurisdiction. Postpone the issue of process against the accused and either enquiry into the case himself/herself or direct an investigation to be made by the police officer to ascertain whether or not there is sufficient ground for proceedings.
In the instant case, it is clear from the plain reading of the impugned order passed by Ld. Magistrate 3rd Court, Katwa, dated 6th February, 2012, that Ld. Magistrate examined the complainant on the date on S.A. under Section 200 Criminal Procedure Code and considered the documents filed by the complainant. Thereafter Ld. Magistrate issued process under Sections 448, 323,506 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 cognizance of an offence committed by a person residing at a place within his/her 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 made enquiry into the case himself/herself or direct an investigation to be made by a police officer or by such other persons as he/she 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 has simply examined the complainant on S.A. considered the evidences produced by the complainant and formed an opinion for issuance of process, which is illegal and is liable to be set aside.
The petitioners are resident of Chinsurah, Hooghly which does not fall within the jurisdiction of Ld. Magistrate, 3rd Court, Katwa, Burdwan. 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 6th February, 2012 passed by the Ld. Magistrate, 3rd Court at Katwa, Burdwan in C. Case No.332/11 under Sections 448, 323,506/34 of the Indian Penal Code is hereby set aside. The Magistrate 3rd Court, Katwa, Burdwan 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.)