Calcutta High Court (Appellete Side)
Bikas Das & Ors vs State Of West Bengal & Anr on 8 August, 2023
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.R. 4240 of 2013
With
CRAN 4 of 2017 (Old CRAN 3719 of 2017)
Bikas Das & Ors.
Vs
State of West Bengal & Anr.
For the Petitioners : Mr. Satadru Lahiri
For the Opposite Party : Mr. N.P. Agarwal
Mr. Pratick Bose
Heard on : 27.02.2023, 03.08.2023.
Judgment on : 08.08.2023.
Ananya Bandyopadhyay, J.:-
1. The instant criminal revisional application is filed by the petitioners seeking
quashing of the proceeding being C.R. Case No. 106 of 2013 under Sections
406/420/468/109 of the Indian Penal Code, 1860 as also the orders
passed therein in connection with the said proceeding, pending before the
Learned Additional Chief Judicial Magistrate, Gangarampur, South
Dinajpur.
2. The revisional application filed by the petitioners precisely stated them to
be the permanent residents of Belda, Sabuj Pally, P.O.-Belda, P.S.-Belda,
District- Paschim Medinipur which was beyond the jurisdiction of Learned
ACJM, Gangarampur, South Dinajpur.
2
3. On the basis of a complaint filed opposite party no. 2 under Section 200 of
the Criminal Procedure Code before the Learned A.C.J.M., Gangarampur,
South Dinajpur, C.R. Case No. 106/2013 was initiated against the
petitioners for commission of offences punishable under Sections
406/420/468/471/109 of the Indian Penal Code, 1860.
4. It was further contended that the mother of the petitioner no.1 filed a
complaint before the Belda Police Station accusing the opposite party no. 2
to have kidnapped and wrongfully restrained petitioner no. 1 who went
missing since 3rd April, 2013. On 4th April, 2013 at 11 PM the mother of
the petitioner no. 1 stated to have received a phone call from the petitioner
no. 1 narrating of having been kidnapped and wrongfully restrained further
stating that the opposite party demanded a sum of Rs. 36 lakhs as ransom
by 5th April, 2013. Based on such complaint Belda Police Station Case No.
82/13 dated 5.4.2013 was registered under Sections 363/365/364A of the
Indian Penal Code. The statement of the mother of the petitioner no. 1 was
recorded under Section 164 of Cr.P.C, 1973.
5. It was further stated that the opposite party no. 2 suppressed the incident
of kidnapping of petitioner no. 1 for illegal gratification and filed the instant
case as a counter blast falsely implicating all the petitioners.
6. The opposite party no. 2 lodged a complaint stating that the
accused/petitioner no. 1 representing himself as "Administer Finance
Secretary of Krishi Bikash Shilpa Kendra,'' established an office at the
house of one Dijen Burman of Kaldighi, under Gangarampur Police Station.
The accused persons being aided and abetted by each other further
represented that Krishi Bikash Shilpa Kendra would recruit people in
3
casual posts and they would also provide them jobs under the Central
Government. The complainant further stated on or about 18 th March, 2010,
the accused persons took a sum of Rs.3,00,000/- from him on such
promise and also collected Rs.1,50,00,000/- from 50 other persons in the
similar manner. The accused persons further issued appointment letters in
favour of certain persons which on subsequent clarification from the
concerned office, were revealed to be forged. On being confronted the
accused persons promised to return the money but ultimately delayed
and/or denied to return the same on one pretext or the other.
7. The Additional Chief Judicial Magistrate Gangarampur, South Dinajpur,
took cognizance of the aforesaid complaint submitted by the opposite party
no. 2 on 30th May, 2013 and subsequently exercising the power under
Section 200 of Cr.P.C. upon examining the opposite party no. 2 under
Section 200 of Cr.P.C. issued process against the petitioners under
Sections 420/406/468/109 of the Indian Penal Code.
8. Section 200 of the Cr.P.C. states as follows:-
" 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
4
the Magistrate makes over the case to another Magistrate
under section 192 after examining the complainant and the
witnesses, the latter Magistrate need not re- examine them.
9. Section 202 of the Cr.P.C. states as follows:-
" 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 192,
may, if he thinks fit, 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 inquiry 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."
5
10. In the case of Shivjee Singh vs Nagendra Tiwary and others 1 the
Supreme Court observed 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 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 being a police officer, he shall have for that
investigation all the powers conferred by this Code on
1 CRIMINAL APPEAL NO. 1158 OF 2010
(Arising out of SLP (Crl.) No. 1416 of 2009)
6
an officer in charge of a police station except the power
to arrest without warrant.
....
...Section 202(1) empowers the Magistrate 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 person
which he thinks fit for the purpose of deciding whether
or not there exists sufficient ground for proceeding. By
Amending Act No.25 of 2005, the postponement of the
issue of process has been made mandatory where the
accused is residing in an area beyond the territorial
jurisdiction of the concerned Magistrate. Proviso to
Section 202(1) lays down that direction for investigation
shall not be made where it appears to the Magistrate
that the offence complained of is triable exclusively by
the Court of Sessions or where the complaint has not
been made by a Court unless the complainant and the
witnesses have been examined on oath under Section
200. Under Section 202(2), the Magistrate making an
inquiry under sub-section (1) can take evidence of the
witnesses on oath. If the Magistrate thinks that the
offence complained of is triable exclusively by the Court
of Sessions then in terms of proviso to Section 202, he is
required to call upon the complainant to produce all his
witnesses and examine them on oath."
11. In the case of Abhijit Pawar vs Hemant Madhukar Nimbalkar and
Another2 the Supreme Court observed as follows :
"16. ...the object of amendment of Section 202 Cr.P.C. is stated to be
to avoid harassment or unnecessary inconvenience to the innocent
persons. However, according to him such alleged harassment is
2 (2017) 3 Supreme Court Cases 528
neither a hypothetical situation, nor it is mere legal submission. If
the accused person feels harassment by an order of issuance of
process then it is expected that he would complain against such
unjust harassment without any delay and in any case at the first
opportunity. It was so held in Rosy and Anr. Vs. State of Kerala.
Therefore, the High Court was fully justified in rejecting the
contention as regards amendment of Section 202 Cr.P.C. being an
afterthought.
17.... in the case of Chandradev Singh Vs. Prakash Chandra Bose3
wherein it was held that the object of inquiry as contemplated
in Section 202, Cr.P.C. is to ascertain the truth or falsehood. The
Magistrate making the inquiry has to do this only with reference to
the intrinsic quality of the statements made before him and the
inquiry which would naturally mean the complaint itself, the
statement on oath made by the complainant, and the statements
made before him by persons examined at the instance of the
complaint.
....
24... Vijay Dhanuka Vs. Najima Mamtaj in the following words:
(SCC p. 644, paras 11-12)
"11.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.
12. The words "and shall, in a case where the accused is
residing at a place beyond the area in which he exercises his
3 AIR 1963 SC 1430 : (1963) 2 Cri LJ 397
jurisdiction" were inserted by Section 19 of the Code of
Criminal Procedure (Amendment) Act (Central Act 25 of 2005)
w.e.f. 23-6-2006. The aforesaid amendment, in the 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 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."
25. For this reason, the amended provision casts an obligation on
the Magistrate to apply his mind carefully and satisfy himself that
the allegations in the complaint, when considered along with the
statements recorded or the enquiry conducted thereon, would prima
facie constitute the offence for which the complaint is filed. This
requirement is emphasised by this Court in a recent judgment
Mehmood Ul Rehman Vs. Khazir Mohammad Tunda4 in the following
words: (SCC pp. 429-30, paras 20 & 22)
"20. The extensive reference to the case law would
clearly show that cognizance of an offence on complaint
is taken for the purpose of issuing process to the
accused. Since it is a process of taking judicial notice of
certain facts which constitute an offence, there has to be
application of mind as to whether the allegations in the
complaint, when considered along with the statements
recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to
appear before the criminal court. It is not a mechanical
process or matter of course. As held by this Court
in Pepsi Foods Ltd. v. Judicial Magistrate 5, to set in
motion the process of criminal law against a person is a
serious matter.
22. The steps taken by the Magistrate under Section
190(1)(a) CrPC followed by Section 204 CrPC should
reflect that the Magistrate has applied his mind to the
facts and the statements and he is satisfied that there
is ground for proceeding further in the matter by asking
the person against whom the violation of law is alleged,
to appear before the court. The satisfaction on the
ground for proceeding would mean that the facts
alleged in the complaint would constitute an offence,
4 (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124
5 (1998) 5 SCC 749 : 1998 (Cri) 1400
and when considered along with the statements
recorded, would, prima facie, make the accused
answerable before the court. No doubt, no formal order
or a speaking order is required to be passed at that
stage. The Code of Criminal Procedure requires
speaking order to be passed under Section 203 CrPC
when the complaint is dismissed and that too the
reasons need to be stated only briefly. In other words,
the Magistrate is not to act as a post office in taking
cognizance of each and every complaint filed before him
and issue process as a matter of course. There must be
sufficient indication in the order passed by the
Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered
along with the statements recorded and the result of
inquiry or report of investigation under Section
202 CrPC, if any, the accused is answerable before the
criminal court, there is ground for proceeding against
the accused under Section 204 CrPC, by issuing process
for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction.
If there is no such indication in a case where the
Magistrate proceeds under Sections 190/204 CrPC, the
High Court under Section 482 CrPC is bound to invoke
its inherent power in order to prevent abuse of the
power of the criminal court. To be called to appear
before the criminal court as an accused is serious
matter affecting one's dignity, self-respect and image in
society. Hence, the process of criminal court shall not be
made a weapon of harassment."
26. The requirement of conducting enquiry or directing investigation
before issuing process is, therefore, not an empty formality. What
kind of 'enquiry' is needed under this provision has also been
explained in Vijay Dhanuka case6, which is reproduced hereunder:
(SCC p. 645, para 14)
"14. 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. (g) 'inquiry' means every inquiry, other than a trial,
conducted under this Code by a Magistrate or court;
It is evident from the aforesaid provision, every inquiry other
than a trial conducted by the Magistrate or the 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."
12. In National Bank of Oman v. Barakara Abdul Aziz And Anr. 7, the
Hon'ble Supreme Court observed as follows:
"8. We find no error in the view taken by the High Court that the CJM,
Ahmednagar had not carried out any enquiry or ordered investigation as
contemplated under Section 202 Cr.P.C. before issuing the process,
considering the fact that the respondent is a resident of District Dakshin
Kannada, which does not fall within the jurisdiction of the CJM,
Ahmednagar. It was, therefore, incumbent upon him to carry out an
enquiry or order investigation as contemplated under Section 202 Cr.P.C.
before issuing the process.
6 Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638
7 (2013) 2 SCC 488
9. The duty of a Magistrate receiving a complaint is set out in Section 202
Cr.P.C. and there is an obligation on the Magistrate to find out if there is
any matter which calls for investigation by a criminal court. The scope of
enquiry under this section is restricted only to find out the truth or
otherwise of the allegations made in the complaint in order to determine
whether process has to be issued or not. Investigation under Section 202
Cr.P.C. is different from the investigation contemplated in Section 156 as it
is only for holding the Magistrate to decide whether or not there is
sufficient ground for him to proceed further. The scope of enquiry under
Section 202 Cr.P.C. is, therefore, limited to the ascertainment of truth or
falsehood of the allegations made in the complaint:
(i) on the materials placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case
for issue of process has been made out; and
(iii) for deciding the question purely from the point of view of the
complainant without at all adverting to any defence that the accused
may have.
10. Section 202 Cr.P.C. was amended by the Code of Criminal Procedure
(Amendment) Act, 2005 and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in
which he exercises his jurisdiction."
The notes on clauses for the abovementioned amendment read 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 amendment has come into force w.e.f. 23-6-2006 vide Notification No.
S.O. 923(E) date 21-6-2006.
11. We are of the view that the High Court has correctly held that the
abovementioned amendment was not noticed by the CJM, Ahmednagar.
The CJM had failed to carry out any enquiry or order investigation as
contemplated under the amended Section 202 Cr.P.C. Since it is an
admitted fact that the accused is residing outside the jurisdiction of the
CJM, Ahmednagar, we find no error in the view taken by the High Court.
12. All the same, the High Court instead of quashing the complaint, should
have directed the Magistrate to pass fresh orders following the provisions
of Section 202 Cr.P.C. Hence, we remit the matter to the Magistrate for
passing fresh orders uninfluenced by the prima facie conclusion reached
by the High Court that the bare allegations of cheating do not make out a
case against the accused for issuance of process under Section 418 or 420
I.P.C. The CJM will pass fresh orders after complying with the procedure
laid down in Section 202 Cr.P.C., within two months from the date of
receipt of this order."
13. The order sheet of the Court of Additional Chief Judicial Magistrate,
Gangarampur dated 26.04.2013 states as follows:
"C.R. CASE NO. 106/2013
Bipul Kr. Sarkar Versus Bikash Das and 04 others.
Order No. 01 Dated : 26/04/13
A Petition of complaint is filed by shri Bipul Kr. Sarkar alleging of
offences punishable U/S 420/406/468/109 of I.P.C. against shri Bikash
Das and 05 others praying for justice.
Perused the petition. Considered.
The cognizance of complaint is taken.
To 30/05/13 for initial Deposition."
"Order No. 2 Dated 30.05.2013
Complt is present by filing hajira. Today is fixed for initial deposition.
Complt Bipul Kr. Sarkar is examined on S.A under Section 200 Cr.P.C.
Considering the complaint and evidence on S.A. and finding materials
u/s 420/406/468/109 of I.P.C. in this stage.
Issue summons u/s 200 Cr.P.C. against the accused persons.
To 30/07/2013 for approve and S.A."
14. The complaint being C.R. Case No. 106/2013 conspicuously mentioned the
address of the accused petitioners to be of West Medinipur and North 24
Parganas which are evidently beyond the jurisdiction of the Learned Trial
Court.
15. The Magistrate mechanically without applying judicious and empirical
discretion and reasoning passed the impugned order non-complying the
provisions mandatorily stipulated under Section 202 of the Cr.P.C. No
enquiry either through the Court itself or an investigation through the
police officer was directed prior to the issuance of summons or process to
the impediment and detriment of the petitioners as well as contravention of
the statutory provisions.
16. Section 202 (1) empowers the Magistrate to defer the issuance 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
whichever mode and manner he deemed appropriate in order to determine
any sufficient ground to proceed with in deciding the case. The Amending
Act No. 25 of 2005 directed mandatory postponement of issuance of
process where the accused resided beyond the territorial jurisdiction of the
concerned Magistrate.
17. The concerned Magistrate is directed to comply the provisions mandated
under Section 202 of the Cr.P.C. through proper inquiry to be conducted as
the accused petitioners resided beyond the territorial jurisdiction of the Ld.
Magistrate and pass orders.
18. The order no.1 dated 26/04/2013 and order no.2 dated 30.05.2013 are set
aside.
19. The revisional application is allowed in part.
20. Accordingly, the instant criminal revisional application along with
connected application stand disposed of.
21. There is no order as to cost.
22. Let the copy of this judgment be sent to the Learned Trial Court as well as
the police station concerned for necessary information and compliance.
23. All parties shall act on the server copy of this judgment duly downloaded
from the official website of this court.
(Ananya Bandyopadhyay, J.)
