Page No.# 1/ vs Deba Kumar Hazarika And Anr
2021 Latest Caselaw 680 Gua

                                                                Page No.# 1/10

GAHC010057422020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : Crl.Pet./231/2020

         BIMAL SARMA AND 3 ORS.
         S/O LATE BHUBANESWAR SARMA, R/O HOUSE NO. 23, GOPAL NAGAR,
         NOONMATI, GUWAHATI-781020, DIST-KAMRUP(M), ASSAM

         2: ANUP KUMAR DEKA
          S/O LATE BIPIN CHANDRA DEKA
          BARBARI USHANAGAR
          PRAGATI PATH
          HOUSE NO. 37
          HENGRABARI P.S.-DISPUR
          GUWAHATI-781037
          DIST-KAMRUP(M) ASSAM

         3: MADHAB DAS
          S/O LATE BHELU RAM DAS
         VILL AND P.O.-DADARA
          P.S.-HAJO DIST-KAMRUP(RURAL)
         ASSAM
          PIN-781104

         4: ASHIM SHARMA
          S/O LATE DWIJESH CHANDRA SARMA
         TITKA TAJE (KATAHKUCHI)
          P.O.-DUBI P.S.-PATACHARKUCHI
          PATHSALA DIST-BARPETA
         ASSAM PIN-78132

         VERSUS

         DEBA KUMAR HAZARIKA AND ANR.
         S/O SRI PUNYESWAR HAZARIKA, R/O CITIZEN APARTMENT, 1-D, SIX
         MILE, GUWAHATI, DIST-KAMRUP(M), PIN-781022

         2:BHUPEN CHANDRA KALITA
                                                                 Page No.# 2/10

             S/O LATE MUKUNDA RAM KALITA
             JONAKPUR BIRUBARI
             DIST-KAMRUP(M) PIN-78101

Advocate for the Petitioner   : MR. D DAS SR. ADV

Advocate for the Respondent : MR. A BARUAH




             Linked Case : Crl.Pet./209/2020

            ANIL KUMAR DUBEY AND ANR.
            COMPANY SECRETARY (CS)
            S/O MR. ONKARANATH DUBEY
            ADMINISTRATOR
            M/S ASSAM CHEMICAL AND PHARMACEUTICAL PVT. LTD.
            HAVING OFFICE AT 22
            MADAN MOHAN TALLA STREET TODI MANSION
            KOLKATA-700005

            2: SURAJIT BHOWMICK
            CHARTERED ACCOUNTANT (C.A.)
             S/O LATE DHIRENDRA NATH BHOWMICK
             STATUTORY AUDITOR OF M/S ASSAM CHEMICAL AND PHARMACEUTICAL
            PRIVATE LIMITED AND HAVING HIS OFFICE AT U.C. MAJUMDAR AND CO
             CHARTERED ACCOUNTANTS
             HOUSE NO. 10
             2ND FLOOR DANISH ROAD
             PANBAZAR
             GUWAHATI-781001 AND R/O NEAR STADIUM
             BARSAPARA
             P.O.-VINOBANAGAR
             P.S.-FATASIL AMBARI
             GUWAHATI-781018
            VERSUS

            DEBA KUMAR HAZARIKA AND ANR.
            S/O SRI PUNYESWAR HAZARIKA
            R/O CITIZEN APARTMENT 1-D
            SIX MILE GUWAHATI
            DIST-KAMRUP(M)
            PIN-781022

            2:BHUPEN CHANDRA KALITA
            S/O LATE MUKUNDA RAM KALITA
                                                                                       Page No.# 3/10

            JONAKPUR
            BIRUBARI
            DIST-KAMRUP(M)
            PIN-781016
            ------------
            Advocate for : MR. D DAS SR. ADV
            Advocate for : MR. A BARUAH appearing for DEBA KUMAR HAZARIKA AND
            ANR.


                                    BEFORE
                       HONOURABLE MR. JUSTICE MIR ALFAZ ALI

                                             ORDER

Date : 25.02.2021

Learned Sr. Counsel Mr. D. Das for the petitioner and learned counsel Mr. A.K. Shrivastava, for the respondent were heard.

2. This order answers the preliminary question raised by the petitioner, as to whether the enquiry as contemplated under Section 202 CrPC is mandatory in view of the fact that some of the accused are residing outside the territorial limit of the learned Magistrate and whether the learned Magistrate has complied with the requirement of Section 202 CrPC in the present case.

3. As regards the first part of the question, the law is well settled that where the accused person is residing at a place beyond the territorial jurisdiction of the Magistrate, the enquiry under Section 202 CrPC, after the Criminal Law Amendment Act, 2005 is mandatory. In fact, there is also no dispute at the bar with regard to the above legal proposition. For any authority, we may refer to Udai Shankar Awasthi Vs. State of U.P. & Anr. reported in (2013) 2 SCC 435 and Vijay Dhanuka & Ors. Vs. Najima Mamtaj & Ors . reported in (2014) 14 SCC 638.

4. Learned Sr. Counsel Mr. D. Das submitted that in the instant case, the learned Judicial Magistrate after examining, the two complainants issued process against the petitioners, though, most of the accused/petitioners are residing outside the territorial jurisdiction of the learned Magistrate and as such there was no compliance with the mandatory provision of Page No.# 4/10

Section 202 CrPC by the learned Magistrate and as such, the impugned order issuing process calls for interference.

5. A complaint was lodged by Sri Deba Kumar Hazarika and Sri Bhupen Chandra Kalita against seven accused persons, out of whom the accused No. 1, 5, 6 & 7 are residing at the place beyond the territorial jurisdiction of the learned Magistrate. Learned Chief Judicial Magistrate upon receiving the complaint transferred the complaint to the court of the learned SDJM (S), Guwahati, Kamrup for taking cognizance. The learned SDJM (S) received the record on 15.10.2019, on which date, the complainant was absent and therefore next date was fixed on 29.10.2019. On 29.10.2019, one of the complainants was present and he was examined on oath by the learned Magistrate under Section 200 CrPC. After examining the complainant under Section 200 CrPC, the learned Magistrate passed the following order:

"Complainant is present. Statement under Section 200 CrPC recorded. Fix 19.11.2019 for further enquiry."

6. On 19.11.2019, the learned Magistrate examined the second complainant as CW-2 and fixed next date for necessary order and passed the following order:

"Complainant is present. CW-2 is examined. Statement of CW-2 under Section 202 CrPC is recorded today. Fix 10.12.2019 for necessary order."

7. On 27.01.2020, learned Magistrate upon consideration of the complaint and the statement recorded as above, issued summons against the petitioners and passed the following order:

"Complainants are present with their learned counsel.

Today, the case was fixed for necessary order.

Perused the C/R including the complaint petition. Statement of the complainant u/s 200 Cr.P.C. and statement of witness u/s 202 CrPC have already been recorded.

Page No.# 5/10

Heard learned counsel for the complainant.

On such perusal and hearing I find prima facie materials of offence under sections 120B/409/420/467/ 468/471/34 of IPC against the accused persons 1) Sri Anil Kumar Dubey, 2) Sri Surajit Bhowmik, 3) Sri Bimal Sarma, 4) Sri Anup Kumar Deka, 5) Sri Madhab Das, 6) Sri Ajay Singh and 7) Sri Ashim Sarma. Accordingly, cognizance is taken against the accused 1) Sri Anil Kumar Dubey, 2) Sri Surajit Bhowmik, 3) Sri Bimal Sarma, 4) Sri Anup Kumar Deka, 5) Sri Madhab Das, 6) Sri Ajay Singh and 7) Sri Ashim Sarma under Sections 120B/409/420/467/468/471/34 of IPC.

Issue summons to accused 1) Sri Anil Kumar Dubey, 2) Sri Surajit Bhowmik, 3) Sri Bimal Sarma, 4) Sri Anup Kumar Deka, 5) Sri Madhab Das, 6) Sri Ajay Singh and 7) Sri Ashim Sarma.

Complainant to take steps

Fix 3/3/20 for appearance."

8. Mr. Das, learned Sr. Counsel for the petitioners submitted that though the learned

Magistrate has recorded in the order sheet, that CW-2, the 2 nd complainant was examined under Section 202 CrPC, the examination of the second complainant cannot be construed as an enquiry contemplated under Section 202 CrPC, and as such, the learned Magistrate fell in error by issuing process without proper enquiry under Section 202 CrPC.

9. Learned counsel for the respondents/complainants submitted that Section 202 CrPC does not provide any specific procedure for conducting enquiry under Section 202 CrPC. Since after examining the complainant No. 1 under Section 200 CrPC, the learned Magistrate postponed the issue of process and fixed the next date for further hearing under Section 202 CrPC, such further hearing after postponement of issue of process was nothing but an inquiry under Section 202 CrPC. The examination of the second complainant as part of enquiry under Section 202 CrPC as specifically mentioned by the learned Magistrate, in the order, satisfied requirement of Section 202 CrPC, inasmuch as, the object and purpose of the enquiry under Section 202 CrPC is to decide whether or not there is sufficient ground for proceeding against the accused. Referring to the statement of CW-1 & CW-2, learned counsel for the respondents Page No.# 6/10

submitted that both the witnesses have elaborately stated before the learned Magistrate supporting the accusation made in the complaint and upon being satisfied after examination of the second complainant under Section 202, learned Magistrate issued process and as such the provision of Section 202 CrPC was fully complied with in the present case.

10. For better appreciation, let me reproduce the provision of section 200 & 202 CrPC.

"Section 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 Magistrate need not re- examine them.

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, 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 Page No.# 7/10

without warrant."

11. Thus, as provided by Section 200 CrPC, upon taking cognizance of the offence on complaint, the Magistrate is required to examine the complainant and the witness, present, if any, and upon such examination of the complainant and the witness present, if the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate may issue summons. Section 202 CrPC provides that while taking cognizance on a complaint, after examination of the complainant and the witness present, if the Magistrate considers necessary that further enquiry is required to decide whether or not there is sufficient ground for proceeding, he may, postpone the issuance of process against the accused and either enquire into the case himself or direct an investigation to be made by 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. However, if the Magistrate finds that the accused is residing at a place beyond the territorial jurisdiction of the Magistrate, in such case, the Magistrate shall postpone issue of process and conduct an enquiry or direct an investigation to be made as aforesaid. Thus, usually the enquiry under Section 202 CrPC is discretionary, but, where the accused resides outside the territorial jurisdiction of the Magistrate, such enquiry under Section 202 CrPC becomes mandatory.

12. What is pertinent to mention is that the purpose of enquiry or investigation under Section 202 CrPC is to take a decision whether there is sufficient ground for proceeding against the accused. Needless to mention that such enquiry under Section 202 CrPC is contemplated for a protection against vexatious criminal proceeding or undeserving criminal proceeding. Thus, from the bare reading of the provision of Section 200 CrPC, it is abundantly clear that upon taking cognizance on a complaint, the Magistrate is obliged to examine on oath the complainant and the witness present, unless the complaint is by a Public Servant acting or purporting to act in discharging his official duties or complaint is made by a court. Thus, under Section 200 CrPC, the Magistrate is required to examine the complainant and witness who is/are present. Section 200 CrPC does not contemplate, that where there are multiple complainants, the Magistrate must examine all the complainants. Therefore, once the Magistrate postpones the issue of process even after examination of one of the complainant who is present, where complainants are more than one, and witness present, if any, in order to conduct an enquiry under Section 202 CrPC, there is no bar in examining the remaining Page No.# 8/10

complainants, in course of enquiry under Section 202 CrPC, inasmuch as, Section 202 CrPC does not provide any specific form or mode of enquiry. Therefore, once the issue of process is postponed after examining the complainant under Section 200 CrPC for further enquiry, such subsequent enquiry in whatever form, shall come within the purview of enquiry under Section 202 CrPC. One must bear in mind, that what is most important is the object and purpose of the enquiry, and not the form or mode of enquiry as contemplated by Section 202 CrPC. The Apex Court in Vijay Dhanuka & Ors. (supra) while confronted with the question whether the learned Magistrate before issuing summons has held an enquiry as mandated under Section 202 CrPC observed on the facts of the case as under:

"13. 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 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." (emphasis supplied)

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 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 Page No.# 9/10

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."

13. The fact of the said case dealt with by the Apex Court in Vijay Dhanuka (supra) was that when the complaint was transferred to the Magistrate, the Magistrate examined the complainant on solemn affirmation and two witnesses under Section 200 CrPC and adjourned the case for orders and on the adjourned date, on the basis of the enquiry conducted under Section 200 CrPC, where the complainant and two witnesses examined directed for issuance of summons on the accused person.

14. In the instant case, when the learned Magistrate after examining the first complainant, who was present postponed the issuance of process for further hearing under Section 202 CrPC, the examination of the second complainant, during such enquiry under Section 202 CrPC cannot be faulted, nor the examination of the second complainant can be construed as enquiry under Section 200 CrPC, reason being that, neither Section 200 CrPC provides that when there are more than one complainant, all shall be examined under Section 200 CrPC nor the provision of Section 202 CrPC mandates that during enquiry under Section 202 CrPC remaining complainant cannot be examined. Though, Section 202 CrPC does not provide for any specific mode of enquiry, the provision clearly lays down the object and purpose of the enquiry, which is to decide, whether there is sufficient ground for proceeding against the accused or not. Therefore, I must say at the cost of reputation, that how the enquiry is conducted or who are examined in course of such enquiry under Section 202 CrPC, is not material. What is of utmost importance is the object and purpose of the enquiry. This view finds support from the decision of the Apex Court in Birla Corporation Ltd. Vs. Adventz Investments and Holdings Ltd. & Ors. reported in 2019 SCC OnLine SC 682, relied by the learned Sr. Counsel for the petitioner.

15. In Birla Corporation Ltd. (supra), the complaint was examined on 06.10.2020 and since the accused persons were residing beyond the territorial jurisdiction of the court, learned Magistrate fixed the matter for enquiry under Section 202 CrPC on 08.10.2020, on which date, learned Magistrate examined another witness under Section 202 CrPC and issued the process. On the above facts, High Court held that there was compliance of the provision of Section 202 CrPC. Though the complainant was examined under Section 200 CrPC and other witnesses Page No.# 10/10

were also examined under Section 202 CrPC, upon scrutiny of the materials brought on record, the Apex Court criticised the order on merit, that there were no material for issuance of summons and while issuing summons after conducting enquiry under Section 200 and 202 CrPC, learned Magistrate acted mechanically without applying mind to the purpose of enquiry i.e. to find out whether there was sufficient ground for proceeding or not. The Apex Court held in paragraph-64 as under:

"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. In the present case, the satisfaction of the Magistrate in ordering issuance of process to the respondents is not well founded and the order summoning the accused cannot be sustained. The impugned order of the High Court holding that there was compliance of the procedure under Section 202 Cr.P.C. cannot be sustained and is liable to be set aside."

16. Therefore, the answer to the question whether provision of Section 202 CrPC is complied with lies not in the procedure adopted in conducting the enquiry or how the enquiry is conducted but whether the object and purpose of the enquiry under Section 202 CrPC is fulfilled. In view of the facts and circumstances of the present case, as indicated hereinbefore, it is held that the enquiry under Section 202 CrPC was conducted by the learned Magistrate and there is no reason to say that provision of Section 202 CrPC was not complied with in the present case.

17. List these matters for further hearing on 19.03.2021.

JUDGE

Comparing Assistant