Calcutta High Court (Appellete Side)
Chetak Enterprises Ltd. & Ors vs The State Of West Bengal & Anr on 23 December, 2024
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3337 of 2022
With
CRAN 2 of 2024
Chetak Enterprises Ltd. & ors.
-Vs-
The State of West Bengal & Anr.
For the Petitioners : Mr. Sandipan Ganguly, Sr. Advocate
Ms. Manaswita Mukherjee,
Mr. Aamir Zafar Khan,
Ms. S. Chatterjee.
For the State : None.
For the Opposite Party No. 2 : None.
Hearing concluded on : 06.12.2024
Judgment on : 23.12.2024
Shampa Dutt (Paul), J.:
1. The present revisional application has been preferred praying for
quashing of the proceedings being CNS No. 195 of 2018 registered
for offence punishable under Section 420/120B of the Indian Penal
Code, 1860, now pending before the Court of the Learned
Metropolitan Magistrate, 19th Court at Calcutta.
2
2. By the petition of complaint before the learned Magistrate the
complainant herein initiated the proceedings against the accused
persons herein who admittedly reside outside the jurisdiction of the
trial Court.
3. The complainant/opposite party in spite of being served has failed to
appear during the hearing of the present case.
4. By the order dated 14.01.2020 in CNS 195 of 2018 the learned
Magistrate issued process. It appears that prima facie the mandatory
provision of Section 202 of Cr. P.C. has not been complied with.
5. 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
3present (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.‖
6. In Vijay Dhanuka and Ors. vs Najima Mamtaj and Ors., (2014)
14 SCC 638, on March 27, 2014, the Supreme Court held:-
―11. Section 202 of the Code, inter alia, contemplates
postponement of the issue of the process ―in a case where
the accused is residing at a place beyond the area in
which he exercises his jurisdiction‖ and thereafter to
either inquire into the case by himself or direct an
investigation to be made by a police officer or by such
other person as he thinks fit. In the face of it, what needs
our determination is as to whether in a case where the
accused is residing at a place beyond the area in which
the Magistrate exercises his jurisdiction, inquiry is
mandatory or not.
12. The words ―and shall, in a case where the accused is
residing at a place beyond the area in which he exercises
his jurisdiction‖ were inserted by Section 19 of the Code
of Criminal Procedure (Amendment) Act (Central Act 25 of
2005) w.e.f. 23-6-2006. The aforesaid amendment, in the
opinion of the legislature, was essential as false
complaints are filed against persons residing at far off
places in order to harass them. The note for the
amendment reads as follows:
4
―False complaints are filed against persons residing at far
off places simply to harass them. In order to see that
innocent persons are not harassed by unscrupulous
persons, this clause seeks to amend sub-section (1) of
Section 202 to make it obligatory upon the Magistrate that
before summoning the accused residing beyond his
jurisdiction he shall enquire into the case himself or direct
investigation to be made by a police officer or by such
other person as he thinks fit, for finding out whether or
not there was sufficient ground for proceeding against the
accused.‖The use of the expression ―shall‖ prima facie makes the
inquiry or the investigation, as the case may be, by the
Magistrate mandatory. The word ―shall‖ is ordinarily
mandatory but sometimes, taking into account the context
or the intention, it can be held to be directory. The use of
the word ―shall‖ in all circumstances is not decisive.
Bearing in mind the aforesaid principle, when we look to
the intention of the legislature, we find that it is aimed to
prevent innocent persons from harassment by
unscrupulous persons from false complaints. Hence, in
our opinion, the use of the expression ―shall‖ and the
background and the purpose for which the amendment
has been brought, we have no doubt in our mind that
inquiry or the investigation, as the case may be, is
mandatory before summons are issued against the
accused living beyond the territorial jurisdiction of the
Magistrate.
13. In view of the decision of this Court in Udai Shankar
Awasthi v. State of U.P. [(2013) 2 SCC 435 : (2013) 1 SCC
(Civ) 1121 : (2013) 2 SCC (Cri) 708] , 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: (SCC p. 449, para 40)―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 [Ed.:
The matter between the two asterisks has been
emphasised in original as well.] mandatory to postpone
the issue of process [Ed.: The matter between the two
asterisks has been emphasised in original as well.] where
5the 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 the court is an inquiry. No specific
mode or manner of inquiry is provided under
Section 202 of the Code. In the inquiry envisaged
under Section 202 of the Code, the witnesses are
examined whereas under Section 200 of the Code,
examination of the complainant only is necessary
with the option of examining the witnesses present,
if any. This exercise by the Magistrate, for the
purpose of deciding whether or not there is
sufficient ground for proceeding against the
accused, is nothing but an inquiry envisaged under
Section 202 of the Code.”
7. In 2018(3) AICLR 625(Cal.), S.S. Binu vs. State of West Bengal
(Cal.), the court held:-
6
―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.
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.
7
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.‖
8. 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
8stage of enquiry 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:-
9
―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 when used with reference
to a court or a Judge, it connotes ‗to take notice
of judicially’. It indicates the point when a court
10or 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
11Magistrate 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
12enquiry 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
13
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.
14
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
15evidence/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
16material particulars and non-application of
mind as to the materials cannot be brushed
aside on the ground that it is only a
procedural irregularity……………..”
9. 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.
10. In Sunil Todi and Ors. vs State of Gujarat and Anr., Criminal
Appeal No. 1446 of 2021, on 03.12.2021, the Supreme Court
held:-
―31. The second submission which has been urged on
behalf of the appellants turns upon Section 202 CrPC,
which is extracted:
―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, 1 [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
17offence 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.‖
32. …………………………………………..
33. The provisions of Section 202 which mandate the
Magistrate, in a case where the accused is residing at a
place beyond the area of its jurisdiction, to postpone the
issuance of process so as to enquire into the case
himself or direct an investigation by police officer or by
another person were introduced by Act 25 of 2005 with
effect from 23 June 2006. The rationale for the
amendment is based on the recognition by Parliament
that false complaints are filed against persons residing
at far off places as an instrument of harassment. In
Vijay Dhanuka v. Najima Mamtaj20, this Court dwelt
on the purpose of the amendment to Section 202,
observing:
―11. Section 202 of the Code, inter alia, contemplates
postponement of the issue of the process ‗in a case
where the accused is residing at a place beyond the
area in which he exercises his jurisdiction’ and
thereafter to either inquire into the case by himself or
direct an investigation to be made by a police officer or
by such other person as he thinks fit. In the face of it,
what needs our determination is as to whether in a case
where the accused is residing at a place beyond the
area in which the Magistrate exercises his jurisdiction,
inquiry is mandatory or not.
12. The words ‗and shall, in a case where the accused
is residing at a place beyond the area in which he
exercises his jurisdiction’ were inserted by Section 19 of
the Code of Criminal Procedure (Amendment) Act
(Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid
amendment, in the opinion of the legislature, was
essential as false complaints are filed against persons
residing at far-off places in order to harass them. The
note for the amendment reads as follows:
‗False complaints are filed against persons residing at
far-off places simply to harass them. In order to see that
innocent persons are not harassed by unscrupulous
persons, this clause seeks to amend sub-section (1) of
Section 202 to make it obligatory upon the Magistrate
18that before summoning the accused residing beyond his
jurisdiction he shall enquire into the case himself or
direct investigation to be made by a police officer or by
such other person as he thinks fit, for finding out
whether or not there was sufficient ground for
proceeding against the accused.’
The use of the expression ―shall‖ prima facie makes the
inquiry or the investigation, as the case may be, by the
Magistrate mandatory. The word ―shall‖ is ordinarily
mandatory but sometimes, taking into account the
context or the intention, it can be held to be directory.
The use of the word ―shall‖ in all circumstances is not
decisive. Bearing in mind the aforesaid principle, when
we look to the intention of the legislature, we find that it
is aimed to prevent innocent persons from harassment
by unscrupulous persons from false complaints. Hence,
in our opinion, the use of the expression ―shall‖ and the
background and the purpose for which the amendment
has been brought, we have no doubt in our mind that
inquiry or the investigation, as the case may be, is
mandatory before summons are issued against the
accused living beyond the territorial jurisdiction of the
Magistrate.‖
34. This Court has held that the Magistrate is duty
bound to apply his mind to the allegations in the
complaint together with the statements which are
recorded in the enquiry while determining whether there
is a prima facie sufficient ground for proceeding. In
Mehmood UI Rehman v. Khazir Mohammad
Tunda21, this Court followed the dictum in Pepsi
Foods Ltd. v. Special Judicial Magistrate22, and
observed that setting the criminal law in motion against
a person is a serious matter. Hence, there must be an
application of mind by the Magistrate to whether the
allegations in the complaint together with the statements
recorded or the enquiry conducted constitute a violation
of law. The Court observed:
―20. The extensive reference to the case law would
clearly show that cognizance of an offence on complaint
is taken for the purpose of issuing process to the
accused. Since it is a process of taking judicial notice of
certain facts which constitute an offence, there has to be
application of mind as to whether the allegations in the
complaint, when considered along with the statements
recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to
appear before the criminal court. It is not a mechanical
process or matter of course. As held by this Court in
19Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd.
v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC
(Cri) 1400] to set in motion the process of criminal law
against a person is a serious matter.‖
***
―22. The steps taken by the Magistrate under Section
190(1)(a) CrPC followed by Section 204 CrPC should
reflect that the Magistrate has applied his mind to the
facts and the statements and he is satisfied that there is
ground for proceeding further in the matter by asking
the person against whom the violation of law is alleged,
to appear before the court. The satisfaction on the
ground for proceeding would mean that the facts alleged
in the complaint would constitute an offence, and when
considered along with the statements recorded, would,
prima facie, make the accused answerable before the
court. No doubt, no formal order or a speaking order is
required to be passed at that stage. The Code of
Criminal Procedure requires speaking order to be passed
under Section 203 CrPC when the complaint is
dismissed and that too the reasons need to be stated
only briefly. In other words, the Magistrate is not to act
as a post office in taking cognizance of each and every
complaint filed before him and issue process as a matter
of course. There must be sufficient indication in the order
passed by the Magistrate that he is satisfied that the
allegations in the complaint constitute an offence and
when considered along with the statements recorded
and the result of inquiry or report of investigation under
Section 202 CrPC, if any, the accused is answerable
before the criminal court, there is ground for proceeding
against the accused under Section 204 CrPC, by issuing
process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction.
If there is no such indication in a case where the
Magistrate proceeds under Sections 190/204 CrPC, the
High Court under Section 482 CrPC is bound to invoke
its inherent power in order to prevent abuse of the power
of the criminal court. To be called to appear before the
criminal court as an accused is serious matter affecting
one’s dignity, self-respect and image in society. Hence,
the process of criminal court shall not be made a
weapon of harassment.‖
These decisions were cited with approval in Abhijit
Pawar v. Hemant Madhukar Nimbalkar23. After
referring to the purpose underlying the amendment of
Section 202, the Court observed:
―25. … the amended provision casts an obligation on
the Magistrate to apply his mind carefully and satisfy
20himself that the allegations in the complaint, when
considered along with the statements recorded or the
enquiry conducted thereon, would prima facie constitute
the offence for which the complaint is filed. This
requirement is emphasised by this Court in a recent
judgment Mehmood Ul Rehman v. Khazir Mohammad
Tunda [Mehmood Ul Rehman v. Khazir Mohammad
Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]…‖
35. While noting that the requirement of conducting an
enquiry or directing an investigation before issuing
process is not an empty formality, the Court relied on the
decision in Vijay Dhanuka which had held that the
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 enquiry envisaged
under Section 202 of the Code.
36. In Birla Corporation Ltd. v. Adventz
Investments and Holdings24, the earlier decisions
which have been referred to above were cited in the
course of the judgment. The Court noted:
―26. 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 CrPC or whether the complaint
should be dismissed by resorting to Section 203 CrPC 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 under Section 202 CrPC, 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.‖
Hence, the Court held:
―33. 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 the
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 [Mehmood Ul Rehman v. Khazir Mohammad
Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]…‖
21The above principles have been reiterated in the
judgment in Krishna Lal Chawla v. State of U.P25.‖The Court considered the same later, in the light of a
proceedings under Section 138/141C N.I. Act.
11. The Magistrate did not comply with the provision of Section 202
Cr.P.C., even though the petitioner reside (in Uttar Pradesh) outside
the jurisdiction of the Trial Court, in a different State.
12. 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.
13. The Hon’ble Supreme Court in Lalit Chaturvedi vs. State of U.P,
Criminal Appeal No. of 2023 (Arising out of SLP (Crl.) No. 13485
of 2023):
―5. This Court, in a number of judgments, has pointed
out the clear distinction between a civil wrong in the
form of breach of contract, non-payment of money or
disregard to and violation of the contractual terms;
and a criminal offence under Sections 420 and 406 of
the IPC. Repeated judgments of this Court, however,
are somehow overlooked, and are not being applied
and enforced. We will be referring to these judgments.
The impugned judgment dismisses the application
filed by the appellants under Section 482 of the
Cr.P.C. on the ground of delay/laches and also the
factum that the chargesheet had been filed on
12.12.2019. This ground and reason is also not valid.
6. In ―Mohammed Ibrahim v. State of Bihar‖, this
Court had referred to Section 420 of the IPC, to
observe that in order to constitute an offence under
the said section, the following ingredients are to be
satisfied:–
22
―18. Let us now examine whether the ingredients of
an offence of cheating are made out. The essential
ingredients of the offence of ―cheating‖ are as follows:
(i) deception of a person either by making a false or
misleading representation or by dishonest
concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person
to either deliver any property or to consent to the
retention thereof by any person or to intentionally
induce that person so deceived to do or omit to do
anything which he would not do or omit if he were not
so deceived; and
(iii) such act or omission causing or is likely to cause
damage or harm to that person in body, mind,
reputation or property.
19. To constitute an offence under section 420, there
should not only be cheating, but as a consequence of
such cheating, the accused should have dishonestly
induced the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a
valuable security (or anything signed or sealed and
which is capable of being converted into a valuable
security).‖
7. Similar elucidation by this Court in ―V.Y.
Jose v. State of Gujarat‖, explicitly states that a
contractual dispute or breach of contract per se should
not lead to initiation of a criminal proceeding. The
ingredient of ‗cheating’, as defined under Section 415
of the IPC, is existence of a fraudulent or dishonest
intention of making initial promise or representation
thereof, from the very beginning of the formation of
contract. Further, in the absence of the averments
made in the complaint petition wherefrom the
ingredients of the offence can be found out, the High
Court should not hesitate to exercise its jurisdiction
under Section 482 of the Cr.P.C. Section 482 of the
Cr.P.C. saves the inherent power of the High Court, as
it serves a salutary purpose viz. a person should not
undergo harassment of litigation for a number of
years, when no criminal offence is made out. It is one
thing to say that a case has been made out for trial
and criminal proceedings should not be quashed, but
another thing to say that a person must undergo a
23
criminal trial despite the fact that no offence has been
made out in the complaint. This Court in V.Y.
Jose (supra) placed reliance on several earlier
decisions in ―Hira Lal Hari Lal Bhagwati v. CBI‖,
―Indian Oil Corporation v. NEPC India Ltd.‖, ―Vir
Prakash Sharma v. Anil Kumar Agarwal‖ and ―All
Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain‖.
10. The charge sheet also refers to Section 406 of the
IPC, but without pointing out how the ingredients of
said section are satisfied. No details and particulars
are mentioned. There are decisions which hold that
the same act or transaction cannot result in an offence
of cheating and criminal breach of trust
simultaneously. For the offence of cheating, dishonest
intention must exist at the inception of the transaction,
whereas, in case of criminal breach of trust there
must exist a relationship between the parties whereby
one party entrusts another with the property as per
law, albeit dishonest intention comes later. In this
case entrustment is missing, in fact it is not even
alleged. It is a case of sale of goods. The chargesheet
does refer to Section 506 of the IPC relying upon the
averments in the complaint. However, no details and
particulars are given, when and on which date and
place the threats were given. Without the said details
and particulars, it is apparent to us, that these
allegations of threats etc. have been made only with
an intent to activate police machinery for recovery of
money.
11. It is for the respondent no. 2/complainant –
Sanjay Garg to file a civil suit. Initiation of the criminal
process for oblique purposes, is bad in law and
amounts to abuse of process of law.‖
14. It further appears from the materials on record that in the
proceedings before the National Company Law Tribunal, Jaipur, the
learned Tribunal held as follows :-
―The counsel for the applicant requests that this Tribunal
may fix the interest on the claim amount of Rs. 11,33,919/-.
Learned counsel for the respondent submits that the
Hon’ble National Company Law Appellate Tribunal, New
24Delhi in Company Appeal (AT) insolvency No. 144/2018
held as follows :-
―In the present appeals, as we find that the principle
amount has already been paid and as per agreement no
interest was payable, the applications under Section 9 on
the basis of claims for entitlement of interest, were not
maintainable. If for delayed payment Appellant(s) claim any
interest, it will be open to them to move before a court of
competent jurisdiction, but initiation of Corporate Insolvency
Resolution Process is not the answer‖.
In the present case, there is no claim for payment of
interest which is fairly admitted by the learned counsel for
the applicant. Hence, applying above judgment of the
Hon’ble National Company Law Appellate Tribunal this
Tribunal holds that since the main claim amount is paid off,
the Company Petition is disposed of. However, it will be
open to the Operational Creditor to move before a Court of
competent jurisdiction for any claim of interest as per law.‖
15. By an order dated 5.8.2019 in a proceedings being CP No.(IB)-
153/9/JPR/2019 the proceedings in the present case has been
initiated prior to the said proceedings before the National Company
Law Tribunal. As the proceeding in the present case is numbered CNS
No. 195/2018, it is thus evident that the complainant has settled
the disputes with Accused No. 1 i.e. M/s. Chetak Enterprises Ltd.
and accepted the total invoice amount of Rs. 11,33,919/- vide (i)
Demand Draft No. 134418 for Rs. 56,771/- dated July 24, 2019,
(ii) Demand Draft No. 1344156 for Rs. 10,52,072 dated July 24,
2019 and (iii) Demand Draft No. 973062 for Rs. 25,076/- dated
August 03, 2019 (total amounting to Rs. 11,33,919/-) before the
Hon’ble Court of NCLT Bench of Jaipur.
16. Admittedly, the parties in this case entered into business
transaction and as stated by the complainant, on the
25
representations and assurance given by the accused persons. From
the petition of complaint before the trial Court it appears that sum of
Rs. 14,04,100.06/- was due to the complainant from the accused
persons.
17. From the order of the National Company Law Tribunal, Jaipur dated
5.8.2019 which was a subsequent proceeding, it appears that the
outstanding dues have been cleared.
18. Copies of receipts of the year 2019 show that the accused persons
herein paid a sum of rupees as noted in the order of the National
Company Law Tribunal. The present proceeding has been initiated
under Section 420/120B of the IPC, prior to receiving the amounts
before the NCLT, thus the claim in the proceedings in this case has
already been prima facie satisfied.
19. Report submitted by the State as to service upon the complainant
shows that the premises is under lock and key and no occupant was
found there.
20. CRR 3337 of 2022 is allowed.
21. The entire proceedings being CNS No. 195 of 2018 registered for
offence punishable under Section 420/120B of the Indian Penal
Code, 1860, now pending before the Court of the Learned
Metropolitan Magistrate, 19th Court at Calcutta, is hereby quashed.
22. All connected applications, if any, stands disposed of.
23. Interim order, if any, stands vacated.
24. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
26
25. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)