Calcutta High Court (Appellete Side)
Mr. Ranadeb Sengupta ... For The vs Barakar Abdul Aziz And Another on 20 September, 2013
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1
CRR 1332 of 2008
Mr. Sekhar Basu, Sr. Advocate
Mr. Soubhik Mitter,
Mr. Ranadeb Sengupta ... For the Petitioner.
None appears on behalf of the opposite party No. 2, Vinoy Kumar Abhani.
None also appears on behalf of the opposite party No. 1, State of West Bengal, despite repeated calls.
This matter is pending for a quite long period. So, this court takes up this matter for disposal.
The only question that has arisen in this application is whether the procedures laid down in section 202 of the
Code of Criminal Procedure is mandatory in nature or not.
Learned Counsel appearing on behalf of the petitioner contended that the procedure laid down in section 202
of the Code of Criminal Procedure is mandatory in nature and the issue whether it is mandatory or directory in nature
has been set at rest by the Apex Court in a decision in National Bank of Oman Vs. Barakar Abdul Aziz and Another.
The petition of complaint under section 200 was filed by M/s. Mirik Healthfoods Private Limited, represented
through S.S. Tewari , General Manager, against Ranjit Tewari and Pawan Sharma for prosecuting them under section
409/420 , 120 B of the Indian Penal Code.
Having that complaint registered, the Learned Magistrate examined the complaint and one witness and,
thereafter, issued summons against Ranjit Tiwari and Pawan Sarma directing them to appear in the matter. They
received summons but did not turn up. The Learned Magistrate, accordingly, issued warrant of arrest against them.
The said Ranjit Tewari and Pawan swarma have come up with this revisional application challenging the order
passed by the Learned Metropolitan Magistrate, Court - No.5th, Calcutta praying for quashing of the proceeding on
the ground that the provision of Section 202 of the Code of Criminal Procedure was not complied with.
Ranjit Tewari and Pawan Sharma, the petitioner herein are residents of 16 A, Atmaram House, 16th Floor,
Tolstoy Marg, Connaught Place, New Delhi- 110001. that is, resident of a place beyond the area in which the
Metropolitan Magistrate , Calcutta exercise its jurisdiction.
Section 202 was inserted by way of amendment with effect from 23.06.2006 by Code of Criminal Procedure
(Amendment) Act, 2005, which says that:
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 it, ( and
2
shall , in a case where the accused is residing at a place beyond the area in which he exercise 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 enquiry 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 issue where the provision of section 202 of the Code of Criminal Procedure is mandatory or directory is no
longer res- integria in view of the decision of the Apex Court in National Bank of Oman vs. Barakar Abdul Aziz And
Another reported in (2013) 2 SCC 488. The Apex Court held that in cases where accused reside beyond area under
which the Magistrate concerned exercise jurisdiction, it is incumbent upon Magistrate to carry out an inquiry or order
of investigation under section 202 before issuing process.
A cursory perusal of the language of section 202 of the Code of Criminal Procedure makes it abundantly clear
that in case where the accused is residing at a place beyond the area in which he exercise jurisdiction, to 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 persons as it things fit for the purpose of deciding whether or not there is sufficient
grounds for proceeding.
In the case in hands, the order of issuing process was passed by the learned Metropolitan Magistrate on
2.5.2007. Amended provision of section 202 of the Code of Criminal Procedure came into force with effect from 3 23.6.2006. Therefore, the Magistrate ought to have held an inquiry or directed an investigation to be made for the purpose of deciding whether or not there is sufficient grounds for proceeding.
The Learned Magistrate straight way issued summons under section 409 of the I.P.C. after taking cognizance of the offence against the present petitioners without complying the mandatory provision of section 202 of the Code of Criminal Procedure.
That being the facts, the order dated 2.5.2007 of the Learned Magistrate and thereafter 28.9.2007 directing issuance of warrant of arrest cannot be said to be legal. Thus, orders being not sustainable in law, are set aside.
The next question, which comes in now, whether for non-compliance of section 202 of the Code of Criminal Procedure, the proceeding itself is to be quashed or not. In my opinion, the proceeding is not required to be quashed. The matter can be remitted to the Learned Magistrate to pass fresh orders in compliance with section 202 of the Code of Criminal Procedure because the prima facie case has already been established according to the learned Magistrate, who had taken cognizance of offence under section 409 of the I.P.C. against the present petitioners.
Accordingly, I, instead of quashing the proceeding dispose of the application with the following directions: -
a) that the order dated 2.5.2007, 2.8.2007 and 28.9.2007 are set aside;
b) that the matter be remitted to the learned Magistrate, Court No. -17 Calcutta for carrying out an
inquiry or an order of investigation under section 202 before issuance of process;
c) After being satisfied with the inquiry / investigation under section 202 of the Code of Criminal Procedure, the Learned Magistrate is to proceed with the case in accordance with law. The application is, thus, disposed of .
Urgent Xerox certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.
( Kanchan Chakraborty, J )