Shyamal Kanti Goswami & Anr vs Ashim Mukherjee

For the petitioners : Mr. Dhananjay Banerjee Heard on : 08.10.2013 Judgement on : 08.10.2013 Joymalya Bagchi, J. : The proceeding being complaint case No. C 2407 of 2012

pending before the learned Judicial Magistrate, 8th Court at Alipore, South 24‐

Parganas under Sections 341/323/324/352/427/384/504/506/34 of the Indian Penal

Code has been assailed.

Two issues have been raised challenging the legality of the proceeding

including the order issuing process. Firstly, enquiry under section 202 of the

Code of Criminal Procedure was not conducted in the instant case prior to

issuance of process although the petitioners were residing beyond the territorial

jurisdiction of the learned Magistrate. Reliance has been placed in the case of

National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 448, Udai

Shankar Aaasthi Vs. State of U.P., (2013) 2 SCC 435 and on an unreported

decision of this Court dated 10th April, 2013 in C.R.R. No. 179 of 2013. It is further submitted that apart from the complaint only one Babai Lama was examined

under section 200 of the Code of Criminal Procedure although he was not cited

as witness in the petition of complaint.

I have considered the submissions in the light of the materials on record. I

find that the petition of complaint was filed against seven accused persons. It is

alleged in the petition of complaint that the petitioners had physically assaulted

the complainant in broad daylight. The complainant examined himself under

section 200 of the Code of Criminal Procedure naming the petitioners and one

Manoranjan Das as his assailants. Such version was supported by one Babai

Lama who saw the incident and rushed to the spot where the assailants ran

away.

In view of the aforesaid materials the learned Magistrate issued process

under sections 323/504/341 IPC against the petitioners and the accused

Manoranjan Das but dismissed the complaint with regard to other accused

persons who had not been named as assailants.

With regard to the first issue, let me consider the impact of the

amendment to section 202 Cr.P.C. as introduced by the Code of Criminal

Procedure (Amendment Act) 2005, (Act 25 of 2005). The said amendment came

into force with effect from 26.03.2006 and amended section 202 Cr.P.C., 1973

reads as follows:

"202. Postponement of issue of process‐ (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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 this Code on an officer‐ in‐ charge of a police station except the power to arrest without warrant." (the underlined portion in italics was incorporated by the aforesaid amendment) The notes on clause setting out the objects and reasons of the aforesaid amendment is as follows: "Objects and Reasons of 2005 amendment‐ 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 inquire into the case himself or direct investigation to be made by a police person by such other person as he thinks fit, finding out whether or not there was sufficient ground for proceeding against the accused, (notes on clause)." A bare reading of the aforesaid objects and reasons for the amendment

and the expression 'shall' used in the amendment emphasizes the imperative

legislative mandate that in order to weed out frivolous and harassive complaints

instituted by unscrupulous persons filed against accused persons residing at far

off places, the Magistrate, before summoning such person, ought to inquire into

the case himself or direct investigation to be made by police or by such other

person as the Magistrate may think fit and proper, in order to find out whether

or not there is sufficient ground for proceeding against the accused person.

Undoubtedly, the 2005 amendment casts a mandatory duty upon the

magistrate to enter upon a more searching and stricter scrutiny into the

truthfulness of the allegations leveled against an accused, if such accused is

residing beyond the territorial jurisdiction of the court. The obligatory nature of

such duty is clearly self‐evident from the expression 'shall' used in the said

amendment and also from the statement of objects and reasons for the said

amendment.

The moot question which falls for decision is whether non‐compliance of

such procedure would by itself vitiate the proceeding and/or the order issuing

process against the accused or not.

The aforesaid provision of law fell for decision before a single judge of this

court in Rameshwar Jute Mills Ltd. v. Sushil Kumar Daga & Ors., 2009 (2) CHN

138.

After analyzing the scope and ambit of sections 200, 202, 203 and 204

Cr.P.C. contained in Chapter XV of the Code, the learned Judge held as follows:

"87. In view of my above discussion the issue as to scope and object of amended provision of section 202 is answered as follows: 1. The application of section 202 of the Code is discretionary and the same will come into operation only in cases where the Magistrate in his discretion decides to postpone the issue of process.

2. In cases where the learned Magistrate postpones the issue of process then it is mandatory on his part to inquire in case of accused persons who are residing outside the jurisdiction of the Court."

Similarly, in Biswanath Maheswari v. Navbharat Tea Processing Private

Limited & Anr., 2010 (2) CHN Cal 257, another learned Single Judge of this

Court interpreting the aforesaid amendment to section 202 Cr.P.C. held as

follows:

"39. After taking into consideration the various provisions under Chapter XV of the Code, I do not find any reason as to why a learned Court if prima facie satisfied as to the existence of an offence cannot straightaway proceed from section 200 to section 204 of CrPC. I do not think it necessary to compulsorily pass through section 202 so as to reach either section 203 or section 204 of CrPC. It is only when a Court of Magistrate fails to satisfy itself regarding the existence of a prima facie case but does not think that such a case deserves to be dismissed then and there under section 203 of CrPC, a Court can postpone the issue of process and direct further investigation under section 202(1) of CrPC. And, if the accused person resides at a place outside the territorial jurisdiction of the Court of Magistrate, it is for the said learned Court to enquire 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. 40. It is possibly needless to add that such observations are made keeping in mind the theory of harmonious construction. It is also necessary to hold that a provision of law should not be so interpreted so as to make it unrealistic. The manner in which Mr. Bhattacharya has sought to extend the scope and ambit of amendment of section 202 of CrPC, I am afraid, may lead to an absurd state of affairs. The basic principle of interpretation of statute is that a provision of law should not be so interpreted so as to lead to absurdity. The words and expressions used under section 202(1) of CrPC are quite plain and unambiguous. Those, in my opinion, do not deserve to be stretched to a point that the same adversely affects the interest of justice. There should be no attempt to read something more than what meets the eyes."

It has been argued that post the aforesaid decisions of this Court, the Apex

Court has laid down in Udai Shankar Awasthi (supra) and National Bank of

Oman (supra) that postponement of process under section 202 Cr.P.C. is

mandatory, in the event an accused resides beyond the territorial jurisdiction of

the learned Magistrate, and, hence, the order issuing process in such cases ought

to be set aside on the score of non‐compliance of such procedure alone.

Let me examine the ratios laid down in Udai Shankar Awasthi (supra) and

National Bank of Oman (supra).

In Udai Shankar Awasthi (supra) the Apex Court had the occasion of

dealing with the aforesaid procedure under section 202 Cr.P.C. and held as

follows :

"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide 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. (See also: Shivjee Singh v. Nagendra Tiwary, AIR 2010 SC 2261; and National Bank of Oman v. Barakara Abdul Aziz, JT 2012 (12) SC 432).

However, it appears from the facts of the said case that the impugned

proceeding was quashed on the ground that earlier complaints on the self‐same

facts had been dismissed and such fact was suppressed at the time of institution

of the subsequent complaint which was instituted after inordinate delay. In this

factual backdrop, the Apex Court quashed the impugned proceeding as an abuse

of process of Court observing as follows :

"46. In Kishan Singh v. Gurpal Singh, AIR 2010 SC 3624, this court while dealing with a case of inordinate delay in launching a criminal prosecution, has held as under: (SCC P.782, para 22)

"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide : Chandrapal Singh v. Maharaj Singh, AIR 1982 SC 1238; State of Haryana v. Bhajan Lal, AIR 1992 SC 604; G. Sagar Suri v. State of U.P, AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P., (2008) 12 SCC 531)."

47. The instant appeals are squarely covered by the observations made in Kishan Singh (Supra) and thus, the proceedings must be labeled as nothing more than an abuse of the process of the court, particularly in view of the fact that, with respect to enact the same subject matter, various complaint cases had already been filed by respondent No.2 and his brother, which were all dismissed

on merits, after the examination of witnesses. In such a fact‐situation, Complaint Case No. 628 of 2011, filed on 31.5.2001 was not maintainable. Thus, the Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to the appellants."

An analysis of the aforesaid ratio makes it amply clear that the impugned

proceeding was quashed as its belated institution by suppressing dismissal of

earlier complaints on self‐same facts amounted to an abuse of process of Court. It

cannot be said that the proceeding was quashed for mere non‐compliance of

section 202 Cr.P.C., 1973. In fact, in the said report though the Apex Court held

that the 2005 amendment was mandatory in nature, it did not make any

observation as to the consequences of its non‐compliance.

It is settled law that a decision is only an authority for what it actually

decides. What is of the essence in a decision is its ratio and not every observation

found therein nor what logically follows from the various observations made in

it. (AIR 1968 SC 647, para 13)

It is true that in National Bank of Oman (supra) the Apex Court set aside

order issuing process upon an accused residing beyond the territorial jurisdiction of the Magistrate on the ground of enquiry under section 202 Cr.P.C. had not

been held prior to issuance of process. The Court held 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 CrPC 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 CrPC before issuing the process.

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.

10. Section 202 CrPC 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) dated 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 CrPC. 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 CrPC. 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 IPC. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 CrPC, within two months from the date of receipt of this order."

However, the factual context in which such observations were made

require to be examined. In National Bank of Oman (supra), the complainant

instituted a petition of complaint against the accused person through its power

of attorney for commission of offence punishable under Sections 418 and 420 of the Indian Penal Code. A Chief Judicial Magistrate took cognizance and found

sufficient material against the accused persons and issued process. Such order

was challenged before the Bombay High Court on twin grounds, namely, the

allegations in the complaint did not prima facie constitute any offence under

sections 418 and 420 of the Indian Penal Code and that there was non‐compliance

of the mandatory obligation to hold enquiry under section 202 Cr.P.C. before

issuance of process as the accuseds resided in a different State.

The High Court quashed the impugned proceeding on both grounds,

namely, the allegations did not disclose the ingredients of the offence of cheating

and that there was non‐compliance of mandatory requirement of postponement

of process under section 202 Cr.P.C.

The complainant assailed the order of the High Court before the Apex

Court. The Apex Court, without expressing any opinion on the finding of the

High Court that the uncontroverted allegations in the complaint did not disclose

the ingredients of the offence of cheating, remanded the matter to the Magistrate

for holding enquiry under section 202 Cr.P.C., without being influenced by the

finding of the High Court that the complaint did not disclose any offence of

cheating, as such mandatory procedure had not been complied with prior to

issuance of process. The Apex Court clarified that though order issuing process

may be set aside, the entire proceeding could not have been quashed on such

score. It appears that the Apex Court had arrived at such finding in the factual

backdrop that the Superior Court (i.e. the High Court) had expressed doubt as to

the correctness of the subjective satisfaction of the Magistrate to proceed against

an accused (residing at a far off place) on the basis of uncontroverted allegations in the complaint and initial depositions recorded at the stage of 200 Cr.P.C. 1973.

In this context, the Apex Court held that the order issuing process against the

accused is liable to be set aside for not complying with the obligatory

requirement of holding enquiry under section 202 Cr.P.C. and remanded the

matter for holding such enquiry uninfluenced by the finding of the High Court.

In my humble view, in the aforesaid decision the issue as to consequence of non‐

compliance of section 202 Cr.P.C., 1973 is cases where there is no realm of doubt

that the allegations in the complaint and initial depositions recorded under

section 200 Cr.P.C. discloses ingredients of the offence and the complicity of the

accused therein did not fall for decision.

In Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills &

Anr., (2002) 3 SCC 496, the Apex Court held as follows :

"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclidʹs theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed: (All ER p. 14C‐D)

ʺThe matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.ʺ

20. In Home Office v. Dorset Yacht Co., (1970) 2 All ER 294, Lord Reid said, ʺLord Atkinʹs speech..... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.ʺ Megarry, J. in (1971) 1 WLR 1062 observed: ʺOne must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.ʺ And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said: (All ER p. 761c)

ʺThere is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.ʺ

21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

22. The following words of Lord Denning in the matter of applying precedents have become locus classicks:

ʺEach case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.ʺ

...............................

ʺPrecedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.ʺ

Hence, it would be incorrect to say that National Bank of Oman (supra)

lays down an inflexible rule of law that in all cases order issuing process upon an

accused residing beyond territorial jurisdiction of the Magistrate has to be set

aside for non‐compliance of section 202 Cr.P.C. (as amended) even if there is no doubt that allegations in the complaint and initial depositions recorded under

section 200 Cr.P.C. prima facie establish with sufficient clarity the contours of the

offence and the complicity of the offender.

The unreported decision of this Court dated 10th April, 2013 in C.R.R. 179

of 2013 is a decision rendered on the facts of that case and no law has been laid

down therein.

It is apposite to note that in spite of its mandatory import the 2005

Amendment does not lay down the consequences of its breach. It is settled law

that whenever there is a breach of procedural law, the consequence of such

breach if not statutorily ventilated, the same must always be adjudged on the

anvil of prejudice to the affected party.

For example, while dealing with the effect of non‐compliance of the

proviso to subsection (2) of section 202 Cr.P.C. in sessions triable cases, the Apex

Court applied the test of prejudice in Rosy Vs. State of Kerala, AIR 2000 SC 637

and in Shivjee Singh Vs. Nagendra Tiwary & Ors., (2010) 7 SCC 578.

Proviso to sub‐section (2) of section 202 Cr.P.C., reads as follows :

"202. (1) ......................

(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."

It is relevant to note that the said provision is also couched with the same

imperative expression "shall" as the present amendment.

In Rosy (supra) the Apex Court while considering the duty of the Court to

examine all witnesses of the complainant under section 202 Cr.P.C. in a sessions

triable cases held that the non‐compliance of such procedure is to be judged from

the anvil of prejudice and failure of justice as provided in section 465 of the Code

of Criminal Procedure. Although there was some dichotomy in the opinion of the

respective Judges as to whether the said proviso is mandatory or not, the Bench

was unanimous in holding the breach of such proviso must be tested on the anvil

of prejudice. The Bench held as follows :‐

"47. Hence, what emerges from the above discussion is :‐

.....................................

(c) The irregularity or non‐compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later."

This view was reiterated in Shivjee Singh Vs. Nagendra Tiwary & Ors.,

(2010) 7 SCC 578 as follows :

"22. The use of the word `shallʹ in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so."

Effects of errors, omissions or irregularities in a proceeding under the

Code is to be judged on the anvil of section 465 Cr.P.C. Section 465 Cr.P.C. reads

as follows :‐

"Section 465.‐ Finding or sentence when reversible by reason of error, omission irregularity.

(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

Effect of breach of procedural law under the Code fell for decision before a

Constitution Bench of this Court in the case of Willie (William) Slaney Vs. State

of M.P., AIR 1956 SC 116. Bose, J. in his inimitable style succinctly laid down the

proposition that unless breach of procedure was so vital as to cut at the root of

the jurisdiction of the tribunal or was so abhorrent as what one might term

violation of natural justice, the matter would resolve itself to a question of

prejudice. Bose, J. enunciated law as follows :‐ "11. For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. That was due‐ to the language of the Judicial Committee in 28 Ind App 257 (PC) (D).

12. Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice. In 28 Ind App 257 (PC) (D), the Privy Council said‐

ʺThe remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularityʺ.

This was examined and explained in Abdul Rahman v. Emperor, AIR 1927 PC 44 at p. 49 (F) as follows:

ʺThe procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accusedʺ.

13. In our opinion, the key to the problem lies in the words underlined. Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.

These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well‐establisbed notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.

Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was ‐occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.

14. This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of latter‐ day criminal jurisprudence in England as well as in India. The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer Justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered."

It is therefore clear that only breaches of procedure which are so vital and

fundamental so as to go to the root of jurisdiction or which affects well

established notions of natural justice would by themselves vitiate a proceeding

without any test of prejudice. In respect of other procedural lapses the breach is

to be judged on the touch stone of prejudice. In recent times, even breaches of

principles of natural justice are tested on the anvil of prejudice to determine the

extent to which it vitiates any proceeding or order. [See ECIL Vs. B. Karunakar,

(1993) 4 SCC 727 (para 30)]

Let us examine whether the procedure engrafted by 2005 amendment to

section 202 Cr.P.C. is of such vital and fundamental import as to strike at the

jurisdiction of the Court or affect well established notions of natural justice so

that mere breach thereof, without anything more, would amount to an illegality

vitiating the order issuing process.

Section 202 Cr.P.C. is enabling provision which is incorporated in Chapter

XV of the Code. Chapter XV of the Code is entituled "Complaints to Magistrate"

comprising the fasciculi of sections from 200 to 203 Cr.P.C. It is followed by

Chapter XVI of the Code captioned "Commencement of proceedings before the Magistrate" which commences with section 204 Cr.P.C. relating to issuance of

process. The aforesaid provisions lay down the procedure to be followed by a

Magistrate once he takes cognizance of any offence on receiving a complaint of

facts consisting such offence under section 190(1)(a) Cr.P.C. Upon taking

cognizance, the Magistrate is required to examine the complainant and his

witnesses on oath and reduce substance of such examination in writing under

section 200 Cr.P.C.

Thereafter, on examination of the allegations in the complaint and the

statements of the complainant and his witnesses on oath recorded under section

200 Cr.P.C., if the Magistrate is satisfied that there is sufficient ground to proceed

against the accused person under the Code, he shall issue process under section

204 Cr.P.C against the accused. In the alternative, if on such materials he is

satisfied that there is no sufficient ground to proceed against the accused person,

the Magistrate shall after recording reasons in support thereof, dismiss the

complaint.

However, on the basis of the complaint and the materials on record under

section 200 Cr.P.C., the Magistrate is unable to form an opinion either way, he

may postpone the issuance of process and hold an enquiry or investigation as

envisaged under section 202 Cr.P.C., 1973 for arriving at a decision as to whether

there is sufficient ground to proceed against the accused person.

The scope of such pre‐summoning enquiry under section 202 Cr.P.C. is

limited in nature. The purpose of such enquiry is to find out whether there are

some materials in support of the truthfulness of the allegations in the

complainant so as to justify the issuance of process. At this stage, the Magistrate is not required to come to a conclusion whether the prosecution may end in

conviction nor is he required to hear the version of the accused person. [See S.K.

Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors.,

(2008) 2 SCC 492, para 22, and Manharibhai Muljibhai Kakadia & Anr.

VsShaileshbhai Mohanbhai Patel & Ors. (2012) 10 SCC 517, para 20]

From the aforesaid scheme of the Code it appears that section 202 is, in

fact, an enabling provision so as to empower the Magistrate to hold an effective

enquiry into the truthfulness of the allegations made in the complaint for the

purpose of arriving at the requisite satisfaction as to whether there is sufficient

ground to proceed against the accused person. The 2005 amendment to section

202 Cr.P.C. therefore is to be judged from that angle. Its object and purpose is to

ensure that the Magistrate while proceeding on a complaint filed against an

accused residing outside its territorial jurisdiction exercises greater care and

caution in examining the allegations leveled against such accused prior to

arriving at a decision to proceed against him under the Code so as to prevent

unnecessary harassment of individuals at the behest of unscrupulous litigants.

However, notwithstanding its mandatory import the amendment cannot arise

above its enabling character. For example, if in a particular case, the truthfulness

of the allegations and the bona fides of the complainant are clearly established on

the basis of materials on record adduced under section 200 Cr.P.C., it would be

an act in futility to compel the Magistrate to embark on pre‐summoning enquiry

under section 202 Cr.P.C. for arriving at a conclusion which is self evident from

the materials already adduced under section 200 Cr.P.C. Nature of such amendment, scope and ambit of its operation clearly

establish that although the same is couched in mandatory terms it does not touch

upon the jurisdiction or competence of the Court in trying the offence nor is it

relatable to any facet of natural justice. In the light of the law laid down in Willie

(William) Slaney (supra) the impact of such procedural lapse must be judged on

the anvil of prejudice as laid down in section 465 of the Code of Criminal

Procedure.

It must also be borne in mind that procedural law is the hand maiden of

justice. It cannot be interpreted in a manner so as to defeat the cause of justice

resulting in manifest absurdity or futility.

In American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd.

& Anr., reported in AIR 1986 SC 137 the Hon'ble Apex Court held :

"It is well‐known principle of interpretation of statute that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly."

Similarly, in Executive Engineer, Southern Electricity Supply Company

of Orissa Ltd. Vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 the Apex Court held

as follows :

"82. .............It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous‐lex neminem cogit ad vana seu inutilia‐the law will not force anyone to do a thing vain and fruitless......."

It would be an act in futility to call upon the Magistrate to postpone

process and hold an enquiry under section 202 Cr.P.C., in cases where the

allegations in the complaint and initial depositions recorded under section 200

Cr.P.C. leave no doubt in the mind of a man of ordinary prudence that there is

sufficient ground to proceed against the accused person. In such cases, to set

aside the order issuing process on the mere plea of non‐compliance of section 202

Cr.P.C. without anything more, would not only amount to an act of futile

superfluity but would also result in undue delay in commencement of trials

burdening the dockets of the Magistrate with meaningless enquiries only to

arrive at foregone conclusions defeating the ends of justice. The amendment was

certainly not enacted to give rise to such absurd consequences. Hence, I hold as

follows : ‐

(a) 2005 amendment to section 202 Cr.P.C. relating to postponement of

process in respect of accused person residing beyond the territorial

jurisdiction though couched in mandatory expression is of enabling

character and does not strike at the jurisdiction or competence of the

Court to try the offence nor does it relate to any facet of natural justice so

that mere non‐compliance thereof by itself would not vitiate the

proceeding or the order issuing process against the accused person.

(b) Ratios in National Bank of Oman (supra) and Udai Shankar Awasthi

(supra) do not lay down any inflexible rule of law that in all cases of mere

non‐compliance of the aforesaid amendment without anything more, the

order issuing process must be set aside irrespective of the test of prejudice

as laid down in section 465 Cr.P.C.

(c) Objection of such non‐compliance must be raised at the earliest stage and

it must be demonstrated as to how such breach has caused or is likely to

cause prejudice to the accused and has occasioned failure of justice in

terms of section 465 Cr.P.C. so as to vitiate the proceeding or order issuing

process. Prejudice to an accused is essentially a question of fact and must

be judged on the facts and circumstances of each case.

In the instant case I find that the complainant is the victim of assault and

has named the petitioners as his assailants. The version of the complainant is

supported by his witness Babai Lama who is an eye witness.

Reading the uncontroverted allegations in the complaint in the light of the

consistent initial depositions of the complainant and his witness, as aforesaid, it

appears that there was sufficient materials on record to proceed against the

petitioners in the instant case. The petitioner resides at an adjoining district not

very far off from the place where the Court of the learned Magistrate is situated.

In the aforesaid factual backdrop, it cannot be said that any prejudice has been

caused to the petitioners by failing to hold enquiry under section 202 Cr.P.C.

prior to issuance of process or that such non‐compliance has occasioned failure

of justice in terms of section 465 Cr.P.C. When the contours of the offence and the

role of the petitioners are well established, it would be futile and result in

unnecessary delay defeating ends of justice to set aside the process and direct

holding of enquiry under section 202 Cr.P.C. particularly when non‐compliance

thereof has not occasioned any failure of justice.

The other issue that the witness examined under section 200 Cr.P.C. did

not fall among those enumerated in the petition of complaint, in my view, does not affect the jurisdiction of the Court to examine such witness produced by the

complainant in support of his case. It is not the requirement of law that names of

all witnesses are to be exhaustively stated in the petition of complaint.

Examination of a witness produced by the complainant, though not named in the

petition of complainant, cannot be said illegal in law. The petitioners would get

an opportunity to cross‐examine such witness in the course of enquiry under

section 244 Cr.P.C. and accordingly I am of the view that examination of such

witness though not in named in the petition of complaint does not cause any

prejudice to them in any manner whatsoever.

For the aforesaid reasons, I do not find any merit in the instant

application.

The application is accordingly dismissed.

(Joymalya Bagchi, J.)