VIJAY DHANUKA ETC. Vs NAJIMA MAMTAJ ETC.
Bench: CHANDRAMAULI KR. PRASAD,PINAKI CHANDRA GHOSE
Case number: Crl.A. No.-000678-000681 / 2014
Diary number: 15415 / 2013
Advocates: BRAJESH KUMAR Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.678-681 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) NOS.5090-5093 of 2013)
VIJAY DHANUKA ETC. …APPELLANTS
VERSUS
NAJIMA MAMTAJ ETC. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD,J.
Petitioners have been summoned in a complaint
case for commission of offence under Section 323,
380 and 506 read with Section 34 of the Indian
Penal Code, hereinafter referred to as “the IPC”.
Respondent No. 1 filed a complaint in the Court of
Additional Chief Judicial Magistrate at Jangipur,
Murshidabad on 1st of October, 2011, who after
taking cognizance of the same, transferred the
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complaint to the Court of Judicial Magistrate,
Jangipur, Murshidabad for inquiry and disposal.
According to the allegation in the complaint
petition, accused no.1 Rajdip Dey is sub-broker of
Karvy Stock Broking Limited; whereas other accused
persons are its officials posted at Kolkata and
Hyderabad. The complainant alleged to be its
investor and claimed to have purchased shares from
Karvi Stock Broking Ltd. through the sub-broker,
accused No. 1. According to the complaint, a
dispute arose over trading of shares between the
complainant and the accused persons and to settle
the on-going dispute, the accused persons offered
a proposal to the complainant who consented to it
and accordingly, on 11th of September, 2011,
accused persons visited at her residence at
Raghunathganj Darbeshpara to have a discussion
with the complainant and her husband. According to
the allegation, the discussion did not yield any
result and the accused persons started shouting at
them. Some of the accused persons, according to
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the allegation, took out a pistol from their bag
and put the same over the heads of the complainant
and her husband. It is alleged that they assaulted
the complainant and her husband with fists and
slaps and also abused them and coerced the
complainant to sign some papers and snatched away
the suitcase containing some papers. The aforesaid
complaint was filed on 1st of October, 2011 in the
Court of Additional Chief Judicial Magistrate,
Jangipur, Murshidabad. The learned Magistrate
took cognizance of the offence and transferred the
case to the Court of another Magistrate for
inquiry and disposal. On receipt of the record,
the transferee Magistrate adjourned the case to
31st of October, 2011. On the said date, the
complainant and her witnesses were present. The
complainant was examined on solemn affirmation and
the two witnesses namely Enamul Haque and Masud
Ali were also examined. Order dated 31st of
October, 2011 shows that they were examined under
Section 200 of the Code of Criminal Procedure,
1973 (hereinafter referred to as the “Code”). The
transferee Magistrate, thereafter, adjourned the
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case for orders and on the adjourned date, i.e.
15th of November, 2011, he directed for issuance of
summons against the accused persons for offence
under Section 323, 380 and 506 read with Section
34 of the IPC. It is relevant here to state that
in the complaint, the residence of the accused has
been shown at a place beyond the territorial
jurisdiction of the Magistrate.
Petitioners challenged the order issuing
process in four separate applications filed under
Section 482 of the Code before the High Court,
inter alia, contending that the accused persons
being residents of an area outside the territorial
jurisdiction of the learned Magistrate who had
issued summons, an inquiry within the meaning of
Section 202 of the Code was necessary. It was
also contended that only after inquiry under
Section 202 of the Code, the learned Magistrate
was required to come to the conclusion as to
whether sufficient grounds exist for proceeding
against the accused persons. Said submission did
not find favour with the High Court and by common
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order dated 19th of February, 2013, it rejected all
the applications. It is against this common order
that the petitioners have filed these special
leave petitions.
Leave granted.
Mr. Jaideep Gupta, learned Senior Counsel
appearing on behalf of the appellants submits that
the accused persons admittedly were residing at a
place beyond the area in which the learned
Magistrate exercised his jurisdiction, hence, an
inquiry under Section 202 of the Code was sine qua
non. He submits that in the present case, the
learned Magistrate has not held inquiry as
envisaged under Section 202 of the Code.
Ms. Nidhi, learned counsel representing
respondent no.1, however, submits that, in fact,
the learned Magistrate before issuing the process
has held an inquiry contemplated under the law and
the order issuing process cannot be faulted on the
ground that no inquiry was held. In view of the
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rival submissions, we deem it expedient to examine
the scheme of the Code.
In the present case, we are concerned with an
order passed in a complaint case. Section 190 of
the Code provides for cognizance of offences by
Magistrates and the same reads as follows:
“190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence-
(a)upon receiving a complaint of facts which constitute such offence;
(b)upon a police report of such facts;
(c)upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section(1) of such offences as are within his competence to inquire into or try.”
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Section 190 of the Code finds place in Chapter
XIV and from its plain reading, it is evident that
the competent Magistrate, inter alia, may take
cognizance of any offence, subject to the
provisions of Chapter XIV, upon receiving a
complaint of facts which constitute an offence.
Section 192 of the Code empowers any Chief
Judicial Magistrate to transfer the case for
inquiry after taking cognizance to a competent
Magistrate subordinate to him. In the present
case, on receipt of the complaint, the learned
Additional Chief Judicial Magistrate in exercise
of the power under Section 192 of the Code, after
taking cognizance of the offence, had made over
the case for inquiry and disposal to the
transferee Magistrate. Section 12(2) of the Code
confers on Additional Chief Judicial Magistrate
the same powers as that of a Chief Judicial
Magistrate. Hence, transfer of the case by the
Additional Chief Judicial Magistrate after taking
cognizance of the case to transferee Magistrate
for inquiry and disposal is perfectly in tune with
the provisions of the Code. The transferee
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Magistrate, thereafter, examined the complainant
and her witnesses and only thereafter issued the
process.
Section 200 of the Code, inter alia, provides
for examination of the complainant on oath and the
witnesses present, if any. Same reads as follows:
“200. Examination of complainant. – A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter
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Magistrate need not re-examine them.”
Under Section 200 of the Code, on presentation
of the complaint by an individual, other than
public servant in certain contingency, the
Magistrate is required to examine the complainant
on solemn affirmation and the witnesses present,
if any. Thereafter, on perusal of the allegations
made in the complaint, the statement of the
complainant on solemn affirmation and the
witnesses examined, if any, various options are
available to him. If he is satisfied that the
allegations made in the complaint and statements
of the complainant on oath and the witnesses
constitute an offence, he may direct for issuance
of process as contemplated under Section 204 of
the Code. In case, the Magistrate is of the
opinion that there is no sufficient ground for
proceeding, the option available to him is to
dismiss the complaint under Section 203 of the
Code. If on examination of the allegations made
in the complaint and the statement of the
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complainant on solemn affirmation and the
witnesses examined, the Magistrate is of the
opinion that there is no sufficient ground for
proceeding, the option available to him is to
postpone the issue of process and either inquire
the case himself or direct the investigation to be
made by a police officer or by any other person as
he thinks fit. This option is also available after
the examination of the complainant only. However,
in a case in which the accused is residing at a
place beyond the area in which the Magistrate
exercises his jurisdiction whether it would be
mandatory to hold inquiry or the investigation as
he thinks fit for the purpose of deciding whether
or not there is sufficient ground for proceeding,
is the question which needs our determination. In
this connection, it is apt to refer to Section 202
of the Code which provides for postponement of
issue of process. The same reads as follows:
“202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section
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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 Sessions; 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 witness 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
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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.”
(underlining ours)
Section 202 of the Code, inter alia,
contemplates postponement of the issue of the
process “in a case where the accused is residing
at a place beyond the area in which he exercises
his jurisdiction” and thereafter to either inquire
into the case by himself or direct an
investigation to be made by a police officer or by
such other person as he thinks fit. In the face
of it, what needs our determination is as to
whether in a case where the accused is residing at
a place beyond the area in which the Magistrate
exercises his jurisdiction, inquiry is mandatory
or not. The words “and shall, in a case where the
accused is residing at a place beyond the area in
which he exercises his jurisdiction” was inserted
by Section 19 of Code of Criminal Procedure
(Amendment) Act (Central Act 25 of 2005) w.e.f.
23rd of June, 2006. The aforesaid amendment, in the
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opinion of the legislature, was essential as false
complaints are filed against persons residing at
far off places in order to harass them. The note
for the amendment reads 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 use of the expression ‘shall’ prima facie
makes the inquiry or the investigation, as the
case may be, by the Magistrate mandatory. The
word “shall” is ordinarily mandatory but
sometimes, taking into account the context or the
intention, it can be held to be directory. The
use of the word “shall” in all circumstances is
not decisive. Bearing in mind the aforesaid
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principle, when we look to the intention of the
legislature, we find that it is aimed to prevent
innocent persons from harassment by unscrupulous
persons from false complaints. Hence, in our
opinion, the use of the expression “shall” and the
background and the purpose for which the amendment
has been brought, we have no doubt in our mind
that inquiry or the investigation, as the case may
be, is mandatory before summons are issued against
the accused living beyond the territorial
jurisdiction of the Magistrate. In view of the
decision of this Court in the case of Udai
Shankar Awasthi v. State of Uttar Pradesh,(2013) 2
SCC 435, this point need not detain us any further
as in the said case, this Court has clearly held
that the provision aforesaid is mandatory. It is
apt to reproduce the following passage from the
said judgment:
“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it
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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.”
(underlining ours)
In view of our answer to the aforesaid
question, the next question which falls for our
determination is whether the learned Magistrate
before issuing summons has held the inquiry as
mandated under Section 202 of the Code. The word
“inquiry” has been defined under Section 2(g) of
the Code, the same reads as follows:
“2. xxx xxx xxx
(g)”inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
xxx xxx xxx”
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It is evident from the aforesaid provision,
every inquiry other than a trial conducted by the
Magistrate or Court is an inquiry. No specific
mode or manner of inquiry is provided under
Section 202 of the Code. In the inquiry envisaged
under Section 202 of the Code, the witnesses are
examined whereas under Section 200 of the Code,
examination of the complainant only is necessary
with the option of examining the witnesses
present, if any. This exercise by the Magistrate,
for the purpose of deciding whether or not there
is sufficient ground for proceeding against the
accused, is nothing but an inquiry envisaged under
Section 202 of the Code. In the present case, as
we have stated earlier, the Magistrate has
examined the complainant on solemn affirmation and
the two witnesses and only thereafter he had
directed for issuance of process.
In view of what we have observed above, we do
not find any error in the order impugned.
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In the result, we do not find any merit in
the appeals and the same are dismissed
accordingly.
………………………………………………………………J (CHANDRAMAULI KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE) NEW DELHI, MARCH 27, 2014.
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