Calcutta High Court (Appellete Side)
Sri Swarup Biswas & Ors vs Unknown on 17 January, 2022
30
17.1.2022
sb
CRR 3799 of 2019
(Via video conference)
In Re: An application under Section 401 read with Section 482 of
the Code of Criminal Procedure, 1973.
In the matter of : Sri Swarup Biswas & Ors.
.......Petitioners
Mr. Kishore Mukherjee ....for the Petitioners
The revisional application was preferred for challenging the
proceeding of C. case no. 306 of 2019 pending before the
Learned Judicial Magistrate, Kalyani under Sections
498A/313/120B/323/506 and 504 of the Indian Penal Code.
The learned advocate for the petitioners while arguing, has
canvassed only the issue of Section 202 of the Code of Criminal
Procedure. According to the learned advocate for the petitioners,
the learned Magistrate without compliance of the provisions of
Section 202 of the Code of Criminal Procedure has issued
process against the petitioners although they are residing
outside the territorial jurisdiction of the learned Magistrate.
I have perused the order-sheet which has been enclosed.
The order-sheet reflects that on 20th June, 2019 the Learned
Additional Chief Judicial Magistrate was pleased to register the
complaint case and transfer the same to the learned Judicial
Magistrate, Kalyani. On 21.6.2019, the learned Judicial
Magistrate, Kalyani was pleased to record, receipt of the records
by transfer from the Learned Additional Chief Judicial
Magistrate, Kalyani and fixed date on 22.8.2019 for S/A.
On 22.8.2019, the learned Magistrate was pleased to
examine on oath on dock the complianant and record the
statement under Section 200 of the Code of Criminal Procedure.
After the initial statement on oath of complainant was recorded,
the learned Magistrate was pleased to observe that on perusal of
the petition of complaint along with all materials on record
together with the statement under Section 200 of the Code of
Criminal Procedure, a prima facie case for commission of offence
punishable under Section 498A/313/506/34 of the Indian Penal
Code was made out by the complainant and the said case must
proceed towards trial. Accordingly, the learned Magistrate issued
process against the accused persons fixing on 29.11.2019 as
next date for S/R and appearance.
Records also reflect that on 6.11.2019, the present
petitioners appeared/surrendered before the Learned Judicial
Magistrate and they were granted bail. The main contention of
the learned advocate for the petitioner is that on the same day, if
the learned Magistrate has recorded the statement on oath of the
complainant without any supporting witness there is no
"postponement of issuance of process" under Section 202 of the
Code of Criminal Procedure and the same itself amounts to non-
compliance.
The very purpose of incorporating Section 202 of the Code
of Criminal Procedure by the legislature was that persons
residing at far of places are not unnecessarily implicated and
harassed with ulterior motive. The present case is a case of
Section 498A of the Indian Penal Code along with other relevant
sections of the Indian Penal Code. The relationships who have
been implicated, are the husband and the parents-in-law of the
complainant.
The petition of compliant reflects that there are allegations
of torture and threat both at the matrimonial home and the
parental home of the complainant. No points have been
canvassed before this Court regarding the identity of the present
petitioner and the existence of the relationship of the petitioners
with the complainant. No issue has been raised as to how and in
what manner, prejudice has been caused so far as the
implication of the present petitioners are concerned.
The only point, which has been reiterated, is with regard to
the non-compliance of the examination of other witnesses and no
enquiry is being conducted by the learned Magistrate and a
separate date being fixed for issuance of process. The word
"enquiry" used in the Code of Criminal Procedure is not a magic
term, there are acts/omissions which are involved within the
parameters of enquiry in this case. The learned Magistrate has
examined the complainant who has alleged of her sufferings. In a
case of matrimonial dispute, prima facie, such oral statement
coupled with the complaint is sufficient material to bring within
the ambit of the term "enquiry" used in Code of Criminal
Procedure for the learned Magistrate to be satisfied for the
limited purpose of issuance of process.
The learned advocate for the petitioners has relied upon a
judgment of a coordinate bench of this Court passed in the case
of Samsul Haque Vs. The State and Anr. in CRR 2312 of 2016
wherein order of issuance of process was set aside and the case
was remanded for fresh consideration.
There is no issue regarding the provision of Section 202 of
the Code of Criminal Procedure existing in the statute book.
However, the mode of application of Section 202 of the Code of
Criminal Procedure would vary from case to case and the
manner of its application in a particular set of facts and
circumstances would be different.
Having regard to the manner in which the learned
Magistrate proceeded, as is reflected from the order dated
22.8.2019, I am of the opinion that there is no illegality in the
proceedings, particularly the manner in which the learned
Magistrate arrived at its subjective satisfaction for issuance of
process. As such no interference is called for.
Accordingly, CRR 3799 of 2019 is dismissed and all
connected applications are disposed of.
Interim order, if any, is hereby vacated.
A submission has been advanced by the learned advocate
for both the parties for expediting the progress of the trial.
Having regard to the submissions and as the Courts are
operating at this stage in virtual mode, no particular time
schedule can be directed. However, the learned Magistrate would
take efforts for fixing at least one day in a month for this case
and take the case to its logical conclusion within a reasonable
period of time.
All parties are to act on the server copy of this order duly
obtained from the official website of this Court.
(Tirthankar Ghosh, J.)
