Madan Mohan Mondal & Ors vs Smt. Kakali Paul (Mondal)
2023 Latest Caselaw 358 Cal

                      IN THE HIGH COURT AT CALCUTTA

                      (Criminal Revisional Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                              CRR 295 of 2019

                                   With

                           IA No. : CRAN 1 of 2019

                        (Old No. : CRAN 1538 of 2019)



                         Madan Mohan Mondal & Ors.

                                     Vs

                          Smt. Kakali Paul (Mondal)




For the Petitioners            : Mr. Milon Mukherjee, Sr. Adv.
                                 Mr. Rahul Ganguly.



For the Opposite Party        : None.



Heard on                      : 20.12.2022

Judgment on                   : 13.01.2023
                                      2


Shampa Dutt (Paul), J.:



       The Revision has been preferred praying for quashing of the

proceedings of C.R. Case No. 197 of 2018, pending before the Court of

the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore under

Sections 498A/323/34 of the Indian Penal Code and Sections 3/4 of

the Dowry Prohibition Act.


       The petitioner no. 1 is the husband of the complainant/opposite

party and the other petitioners are his relatives.


       The allegations by the Complainant in the petition of complaint

was to the effect that after her marriage the petitioners took away and

sold all her gold ornaments and swindled the sale proceeds. There was

regular demand of dowry and when her father refused to pay any

further dowry, the opposite party managed to escape from her

matrimonial home when they tried to kill her.


       The Learned Chief Judicial Magistrate, Paschim Midnapore upon

receipt of the aforesaid petition of compliant, was pleased by his order

dated 19.04.2018 to take cognizance of the offences and transferred the

case to the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore

for trial and disposal.


       On 23.07.2018 the Learned Judicial Magistrate, 2nd Court,

Paschim Midnapore upon examination of the complainant/opposite
                                    3


party on solemn affirmation, was pleased by his order to find out a

prima facie case made out against the petitioners under Sections

498A/323/34 of the Indian Penal Code and Sections 3/4 of the Dowry

Prohibition Act and issued summons against them and was further

pleased to fix 11.10.2018 for service return and appearance.


       The allegations in the said petition of complaint are to the

effect that the petitioner no. 1 was married to the complainant/opposite

party on 24.11.2014 as per Hindu rites and customs. At the time of

marriage as per the demand of the accused persons, the father of the

opposite party gave Rs. 2.5 lakhs in cash out of the demanded sum of

Rs. 3 lakhs, 10 bhoris of gold ornaments and other articles. That after

marriage the opposite party started residing at her husband's house

and the petitioners took away all her gold ornaments and sold the same

and swindled the sale proceeds.


       After few days of the marriage, the petitioners demanded the

balance sum of Rs. 50,000/- from the father of the opposite party but

as he failed to meet such demand, the petitioner was assaulted by the

accused persons and was not even given proper food and medical

treatment when she fell ill. The opposite party bore all such torture in

silence.
                                    4


       That subsequently the opposite party became pregnant but

inspite of that, the petitioners inflicted mental and physical torture

upon her over the issue of the balance sum of Rs. 50,000/-.


       On 21.01.2016 the opposite party gave birth to a female child as

a result of which the petitioners stopped talking to the opposite party

and demanded a further sum of Rs. 3 lakhs from her father as expenses

towards the marriage of the daughter of the opposite party. On coming

to know about such demand from his daughter, the father of the

opposite party handed over a sum of Rs. 1 lakh to the petitioner no. 1

and requested the accused persons not to torture his daughter i.e. the

opposite party and torture upon the opposite party was stopped for

sometime. However, the petitioners demanded a further sum of Rs. 2

lakhs after a few months, but when the father of the opposite party

expressed his inability to pay any further sum of money, the petitioners

abused her in filthy languages and even assaulted her. On 26.01.2018

at about 5-00 a.m. when the petitioners with a view to kill the opposite

party went to bring kerosene, the opposite party somehow managed to

escape from her matrimonial home along with her female child and took

shelter at her paternal home. Since then the petitioners did not take

any information about the welfare of the opposite party.


       Mr. Milon Mukherjee, Learned Senior Counsel appeared for

the petitioner has submitted that the impugned proceeding is a gross
                                      5


abuse of the process of law which if allowed to continue will degenerate

itself into a weapon of harassment and persecution and as such the

same is liable to be quashed forthwith for the ends of justice.


       The impugned proceeding is vexatious, malafide and has been

initiated with an oblique motive to harass and humiliate the petitioners.

In such backdrop, continuance of such proceeding, so far as it relates

to the petitioners, is liable to be quashed.


       Taking cognizance of the offence by the Learned Magistrate on

the basis of the said petition of complaint and further proceedings

therein has no basis whatsoever.


       The petitioners are permanent residents of Jharkhand and

the complaint was lodged at Paschim Midnapore, although the alleged

acts constituting offences under Sections 498A/323/34 of the Indian

Penal Code occurred in Jharkhand, the place of enquiry should be at

Jharkhand and the Learned Magistrate erred in law by taking

cognizance of the offences without compliance of Section 202 of the

Cr.P.C.


       Mr. Mukherjee has further submitted that the Code of Criminal

Procedure was amended in the year 2005 wherein Section 202 of the

Code was amended by adding of the words.
                                     6


       "And shall in a case where the accused is residing at a place

beyond the area in which he exercises his jurisdiction". The main

purpose or object behind this amendment was to stop false complaints

against such persons residing at far off places in order to save them

from unnecessary harassment.


       Thus in the present case, the petitioners are residing at

Jharkhand which is beyond the area where the Magistrate is exercising

his jurisdiction, it is mandatory on the part of the Magistrate to conduct

an inquiry or investigation before issuing process and as the same was

not done in the present case, the order of taking cognizance is bad in

law and liable to be set aside and the proceeding impugned is also liable

to be quashed.


       That the requirement of conducting inquiry or directing an

investigation before issuing process is not an empty formality and

witnesses are needed to be examined, whereas under Section 200 of the

Code, examination of the complainant only is necessary with the option

of examination of witnesses if any, and this exercise by the

Magistrate for the purpose of examining whether or not there is

sufficient ground of proceeding against the accused is not an

empty formality but is 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
                                      7


the inquiry conducted thereon would prima facie constitute the

offence for which the complaint is filed. In the instant case the

Magistrate erred in law by not complying with the mandatory provisions

envisaged under Section 202 of the Code.


       The allegation made in the petition of complaint, do not prima

facie constitute any offence or make out a case against the petitioner

and as such the initiation and continuation of the instant proceeding is

liable to be quashed for the ends of justice.


       The impugned proceeding is otherwise bad in law and as such

the same is liable to be quashed.


       There is no representation on behalf of the opposite party
inspite of due service.

       Mr. Mukherjee has brought the notice of the court to the ruling
cited in 2018(3) AICLR 625(Cal.), S.S. Binu vs. State of West Bengal
(Cal.), para 100 which is reproduced here:-

          "100. To sum up, the reference made by the Learned
          Single Judge on the five issues are answered as follows:-

          I. According to the settled principles of law, the
          amendment of sub-section (1) of Section 202 Cr.P.C. by
          virtue    of Section   19 of    the     Criminal   Procedure
          (Amendment) Act, 2005, is aimed to prevent innocent
          persons, who are residing outside the territorial
          jurisdiction of the Learned Magistrate concerned, from
          harassment by unscrupulous persons from false
          complaints. The use of expression "shall", looking to the
          intention of the legislature to the context, is mandatory
          before summons are issued against the accused living
          beyond the territorial jurisdiction of the Magistrate.
                          8


II. Keeping in mind the object sought to be achieved
by way of amendment of sub-section (1) of Section
202 Cr.P.C., the nature of enquiry as indicated
in Section     19 of    the    Criminal    Procedure
(Amendment) Act, 2005, the Magistrate concerned
is to ward of false complaints against such persons
who reside at far of places with a view to save
them from unnecessary harassment and the
Learned Magistrate concerned is under obligation
to find out if there is any matter which calls for
investigation by Criminal Court in the light of the
settled principles of law holding an enquiry by way
of examining the witnesses produced by the
complainant or direct an investigation made by a
police officer as discussed hereinabove.

III. When an order of issuing summon is
issued by a learned Magistrate against an
accused who is residing at a place beyond the
area in which he exercises his jurisdiction
without conducting an enquiry under Section
202 Cr.P.C., the matter is required to be
remitted to the learned Magistrate concerned
for passing fresh orders uninfluenced by the
prima facie conclusion reached by the
Appellate Court.

IV. Keeping in mind the object underlined in Section
465 Cr.P.C. that if on any technical ground any
party to the criminal proceedings is aggrieved he
must raise the objection thereof at the earliest
stage. In the event of failure on the part of an
aggrieved party to raise objection at the earliest
stage, he cannot be heard on that aspect after the
whole trial is over or even at a later stage after his
participation in the trial.

V. In cases falling under Section 138 read
with Section 141 of the N.I.Act, the Magistrate is
not mandatorily required to comply with the
provisions of Section 202 (1) before issuing
summons to an accused residing outside the
territorial jurisdiction of the learned Magistrate
concerned."
                              9


Section 202 Cr.P.C. lays down:-


    "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 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
                                    10


           this Code on an officer- in- charge of a police station
           except the power to arrest without warrant."



       This court also relies upon the case of Birla Corporation Ltd.

vs. Adventz Investments and Holdings (Criminal appeal No. 875,

876, 877 of 2019) The Supreme Court on 9th May, 2019 observed and

held in respect of Section 202 Cr.P.C. as follows (The relevant

paragraph are reproduced herein):-


           26. Complaint filed under Section 200 Cr.P.C. and
           enquiry contemplated under Section 202 Cr.P.C.
           and issuance of process:- Under Section 200 of the
           Criminal Procedure Code, on presentation of the
           complaint by an individual, the Magistrate is
           required to examine the complainant 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, the Magistrate has to
           get himself satisfied that there are sufficient
           grounds for proceeding against the accused and on
           such satisfaction, the Magistrate may direct for
           issuance of process as contemplated under Section
           204 Cr.P.C.    The    purpose   of    the   enquiry
           under Section 202 Cr.P.C. is to determine whether
           a prima facie case is made out and whether there
           is sufficient ground for proceeding against the
           accused.

           27. The scope of enquiry under this section is
           extremely restricted only to finding out the truth or
           otherwise of the allegations made in the complaint
           in order to determine whether process should be
           issued or not under Section 204 Cr.P.C. or whether
           the complaint should be dismissed by resorting
           to Section 203 Cr.P.C. on the footing that there is no
           sufficient ground for proceeding on the basis of the
           statements of the complainant and of his
           witnesses, if any. At the stage of enquiry
                         11


under Section 202 Cr.P.C., the Magistrate is only
concerned with the allegations made in the
complaint or the evidence in support of the
averments in the complaint to satisfy himself that
there is sufficient ground for proceeding against the
accused.

28. In National Bank of Oman v. Barakara Abdul
Aziz and Another (2013) 2 SCC 488, the Supreme
Court explained the scope of enquiry and held as
under:-

 "9. The duty of a Magistrate receiving a complaint
is set out in Section 202 CrPC 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 CrPC
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 CrPC 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."

29. In Mehmood Ul Rehman v. Khazir Mohammad
Tunda and Others (2015) 12 SCC 420, the scope of
enquiry under Section 202 Cr.P.C. and the
satisfaction of the Magistrate for issuance of
process has been considered and held as under:-
                         12


"2. Chapter XV Cr.P.C. deals with the further
procedure for dealing with "Complaints to
Magistrate".    Under Section      200 Cr.P.C,    the
Magistrate, taking cognizance of an offence on a
complaint,   shall    examine upon         oath   the
complainant and the witnesses, if any, present and
the substance of such examination should be
reduced to writing and the same shall be signed by
the complainant, the witnesses and the Magistrate.
Under Section 202 Cr.P.C, the Magistrate, if
required, is empowered to either inquire into the
case himself or direct an investigation to be made
by a competent person "for the purpose of deciding
whether or not there is sufficient ground for
proceeding". If, after considering the statements
recorded under Section 200 Cr.P.C and the result of
the inquiry or investigation under Section 202
Cr.P.C, the Magistrate is of the opinion that there is
no sufficient ground for proceeding, he should
dismiss the complaint, after briefly recording the
reasons for doing so.

3. Chapter XVI Cr.P.C deals with "Commencement
of Proceedings before Magistrate". If, in the opinion
of the Magistrate taking cognizance of an offence,
there is sufficient ground for proceeding, the
Magistrate has to issue process under Section
204(1) Cr.P.C for attendance of the accused."

30. Reiterating the mandatory requirement of
application of mind in the process of taking
cognizance, in Bhushan Kumar and Another v.
State (NCT of Delhi) and Another (2012) 5 SCC 424,
it was held as under:-

"11. In Chief Enforcement Officer v. Videocon
International Ltd.

(2008) 2 SCC 492 (SCC p. 499, para 19) the
expression "cognizance" was explained by this
Court as "it merely means 'become aware of' and
                         13


when used with reference to a court or a Judge, it
connotes 'to take notice of judicially'. It indicates
the point when a court or a Magistrate takes
judicial notice of an offence with a view to initiating
proceedings in respect of such offence said to have
been committed by someone." It is entirely a
different thing from initiation of proceedings; rather
it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons.
Under Section 190 of the Code, it is the application
of judicial mind to the averments in the complaint
that constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there is
sufficient ground for proceeding and not whether
there is sufficient ground for conviction. Whether
the evidence is adequate for supporting the
conviction can be determined only at the trial and
not at the stage of enquiry. If there is sufficient
ground for proceeding then the Magistrate is
empowered for issuance of process under Section
204 of the Code."

31. Under the amended sub-section (1) to Section
202 Cr.P.C., it is obligatory upon the Magistrate
that before summoning the accused residing
beyond its jurisdiction, he shall enquire into the
case himself or direct the investigation to be made
by a police officer or by such other person as he
thinks fit for finding out whether or not there is
sufficient ground for proceeding against the
accused.

32. By Cr.P.C. (Amendment) Act, 2005, in Section
202 Cr.P.C. of the Principal Act with effect from
23.06.2006

, in sub-section (1), the words "...and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction..." were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it

obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:-

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that the 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."

33. Considering the scope of amendment to Section 202 Cr.P.C., in Vijay Dhanuka and Others v. Najima Mamtaj and Others (2014) 14 SCC 638, it was held as under:-

"12. ....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." Since the amendment is aimed to prevent persons residing outside the jurisdiction of

the court from being harassed, it was reiterated that holding of enquiry is mandatory. The purpose or objective behind the amendment was also considered by this Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528 and National Bank of Oman v.

Barakara Abdul Aziz and Another (2013) 2 SCC

488.

34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under:- "22. ....the Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. 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 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., 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 Cr.P.C., the High Court under Section 482 Cr.PC. 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."

35. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para (28), it was held as under:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL

Employees Stock Option Trust v. India Infoline Limited (2013) 4 SCC 505.

36. To be summoned/to appear before the Criminal Court as an accused is a serious matter affecting one's dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. In Punjab National Bank and Others v. Surendra Prasad Sinha 1993 Supp (1) SCC 499, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment.

37. At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. In Jagdish Ram v. State of Rajasthan and Another (2004) 4 SCC 432, it was held as under:-

"10. ....The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."

56. As held in Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Another AIR 1963 SC 1430 and in a series of judgments of the Supreme Court, the object of an enquiry

under Section 202 Cr.P.C. is for the Magistrate to scrutinize the material produced by the complainant to satisfy himself that the complaint is not frivolous and that there is evidence/material which forms sufficient ground for the Magistrate to proceed to issue process under Section 204 Cr.P.C. It is the duty of the Magistrate to elicit every fact that would establish the bona fides of the complaint and the complainant.

60........................The Magistrate who is conducting an investigation under Section 202 Cr.P.C. has full power in collecting the evidence and examining the matter. We are conscious that once the Magistrate is exercised his discretion, it is not for the Sessions Court or the High Court to substitute its own discretion for that of the Magistrate to examine the case on merits. The Magistrate may not embark upon detailed enquiry or discussion of the merits/demerits of the case. But the Magistrate is required to consider whether a prima case has been made out or not and apply the mind to the materials before satisfying himself that there are sufficient grounds for proceeding against the accused.......................

61. The object of investigation under Section 202 Cr.P.C. is "for the purpose of deciding whether or not there is sufficient ground for proceeding". The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be

made as an instrument of harassment to the accused. As discussed earlier, issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity................."

Thus it is clear that Section 202 Cr.P.C. makes it obligatory

upon the Magistrate that before summoning the accused residing

beyond his jurisdiction he shall inquire 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 is sufficient ground for

proceeding against the accused.

The orders relevant in the present revision dated 19.04.2018 of

the Chief Judicial Magistrate, Paschim Midnapore and order dated

23.07.2018 of the Judicial Magistrate, 2nd Court, Paschim

Midnaporeand are reproduced here:

Order dated 19.04.2018

"This is a complaint u/s- 498A/323/34 I.P.C. Act filed this day by the above named complainant before this Court.

Cognizance is taken.

Let, the case record be treat as complaint case.

Transfer the case record to the Ld. JM 2nd Court, Paschim Medinipur for disposal."

Order dated 23.07.2018 "Record is fixed today.

The complt is present examined on S.A.

Opn. such examination, this court finds sufficient grounds for proceeding U/s- 498A/323/34 IPC and Sec. 3/4 D.P. Act.

Issue process U/s- 204 Cr.P.C."

It is clear from the said orders that no inquiry as obligatory

under Section 202 Cr.P.C. has been conducted.

The Magistrate did not comply with the provision of Section 202

Cr.P.C., even though the petitioners reside outside the jurisdiction of

the court, (the only address being in the State of Jharkhand).

In the present case the Magistrate did not Conduct any inquiry

into the case himself or direct an investigation as required under

Section 202 Cr.P.C. before directing the issue of process and as such

the order is not in accordance with law, and is thus an abuse of the

process of law.

The proceedings in this case (CR 197/18) is for offences

punishable under Sections 498A/323/34 IPC read with Section 3 /4 of

the Dowry Prohibition Act. The nature of allegations in the petition of

complaint also needs an inquiry under Section 202 Cr.P.C.

Thus considering the facts and circumstances of the present

case, the nature of case pending between the parties, the non-

compliance of Section 202 Cr.P.C. by the Magistrate before issuance of

process is prima facie an abuse of process of Court.

Accordingly in the interest of justice the order dated 23.07.2018

in CR 197/18 pending before the Court of Judicial Magistrate, 2nd

Court, Purba Midnapore, is hereby set aside/quashed.

The matter is remitted to the learned Magistrate for

considering the matter a fresh as per the relevant provision of law,

under Section 202 Cr.P.C. and as per the guidelines of the Supreme

Court in the judgment [Birla Corporation Ltd. vs. Adventz

Investments and Holdings (Supra)] referred in this order/judgment

without being influenced by the order of this Court and also being

guided by the judgment in S.S. Binu vs. State of West Bengal (Supra).

CRR 295 of 2019 along with CRAN 1/2019 are disposed of.

There will be no order as to costs.

All connected Application stand disposed of.

Interim order if any stands vacated.

Copy of this judgment be sent to the learned Trial Court

forthwith for necessary compliance.

Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal

formalities.

(Shampa Dutt (Paul), J.)