Maintainability of revision aginst summoning order
Querist :
Anonymous
(Querist) 31 October 2011
This query is : Resolved
dear sir
i want to know about the latest law led doun on maintainability of revision petion in session court against a summoning order by a magistrate.
Thanks
Raj Kumar Makkad
(Expert) 31 October 2011
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CRIMINAL PROCEDURE
Date of Reserve: January 03, 2011
Date of Order: February 14, 2011
Crl. Rev P. No. 8/2010
Abhishek Agrawalla ...Petitioner
Versus
Boortmalt NV & Anr. ...Respondents
Counsels:
Mr. Jayant Bhushan, Sr. Adv. with Mr. Jagdeep Anand for petitioner.
Mr. Vikas Goel, Mr. Abhishek Kumar and Mr. Ravinder Singhania for
respondents.
JUSTICE SHIV NARAYAN DHINGRA
JUDGMENT
1. This revision petition under Section 397 Cr.P.C has been preferred by
the petitioner against an order dated 9th October 2009 passed by learned
MM in complaint case number 108 of 2008.
2. A complaint was filed against the petitioner who is a resident of Noida
adjoining Delhi falling in U.P under Sections 420/406/120B IPC and the
learned MM after recording pre-summoning evidence and appreciating
documents filed by the complainant came to conclusion that the petitioner
and his co-accused entered into a criminal conspiracy and cheated
complainant company of several crore of rupees. The learned MM
summoned the petitioner and other co-accused under Section 420 IPC.
3. The only ground pressed during arguments of this petition assailing
order of learned MM is that the order was bad in law in view of the fact that
the trial court failed to comply with the provisions of Section 202 Cr.P.C
whereunder the trial court was supposed to postpone the issue of process and
was to conduct an inquiry either himself or direct investigation to be made
by the police officials into the allegations since the accused was residing at a
place beyond the area in which the trial court had jurisdiction.
4. It is submitted by the counsel for the petitioner that recording of
complainant’s evidence on oath and evidence of witnesses was required to
be done by the Magistrate under Section 200 Cr.P.C and the Magistrate after
recording complainant’s evidence can issue process in respect of accused
person living within the jurisdiction. However, if the accused was living
beyond the jurisdiction of the court i.e. accused was not living within Delhi,
then in view of Section 202 Cr.P.C mere recording of complainant’s
evidence and witnesses was not sufficient and an inquiry was required to be
conducted mandatorily under the provisions of Section 202 Cr.P.C before
issuing process.
5. Section 202 of Cr.P.C reads as under:
“202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence which he is
authorised to take cognizance or which has been made over to him under
section 192, may, if he thinks fit,[ and shall, in a case where the accused is
residing at a place beyond the area in which he exercises his jurisdiction,]
postpone the issue of process against the accused, and either inquire into the
case himself or direct an investigation to be made by a police officer or by
such other person as he thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, -
(a) Where it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Sessions or
(b) Where the complaint has not been made by a court, unless the
complainant and the witnesses present (if any) have been examined on oath
under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit,
take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a
police officer, he shall have for that investigation all the powers conferred by
this Court on an offer in charge of a police station except the power to arrest
without warrant.”
6. The portion in para (1) was introduced by the Parliament by Act
No.25 of 2005 and came into effect on 23rd June, 2006. The purpose for
making this amendment as stated in the noting on the Code of Criminal
Procedure Amendment Bill reads as under:
“Clause 24- 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.”
7. It is submitted by the counsel for the petitioner that the amendment in
Section 202 Cr.P.C makes it obligatory on the part of Magistrate to hold an
enquiry in a complaint case where the accused resides beyond its
jurisdiction. Since in this case, no enquiry was held either by Magistrate
himself or through police the summoning order was bad in law.
8. There are two kinds of cases which come before the court, one where
the offence is sought to be proved from documents and the oral testimony is
given before the court to prove the documents by exhibiting the documents
and by deposing as to when the documents were executed and by whom.
The other kind of cases are where the case does not depend on documentary
evidence and depends upon only the oral testimony. These are cases of
physical hurt, injuries, threats etc. In order to protect an innocent person
being summoned by the Magistrate on the basis of oral testimony of a
person and considering that a large number of false complaints were being
filed at far-off places just to harass the people, the Parliament had amended
Section 202 so that the summoning orders were not issued mechanically by
the Magistrates and whenever the accused was of other State an
investigation or enquiry into the allegations was mandatorily conducted
either by the Magistrate himself or through police. Say for example, a person
files a complaint that on telephone he had been threatened by a person
seeking ransom or he had been threatened to be killed and the person who
allegedly threatened him was living outside the jurisdiction of the court.
Before acting on this oral statement of the victim, it would be incumbent
upon the court to make an enquiry about the call details, about the telephone
and about telephone number from which the threat was allegedly received
and the telephone number of the complainant. The call details for period
around the date of incident would show if the calls had been made frequently
or it was a solitary call and the Magistrate can also make enquiry about the
person in whose name the telephone was standing. This would enable the
Magistrate to find out if there was credibility in the statement given by the
complainant. The Magistrate can summon the officials of service provider
telephone company and make this enquiry himself. Similarly there may be a
case where a person alleges that while he was at X place, Y a resident of
other State had come there and beaten him or abused him or threatened him
or caused injuries to him etc. The person produces his MLC and makes an
oral statement. The court in such a case, if the accused is of outside his
jurisdictional area, would have to get an enquiry made through police if the
accused was living at the address given and if the accused had visited the
place where it was alleged that he had beaten or threatened. The Magistrate
can also get a fact finding enquiry done from police of that State or police of
his own State. However, where the commission of offence is disclosed only
from the documents, no further enquiry except scrutinizing the documents
proved before the court by testimony of complainant is feasible, I consider
that the enquiry envisaged under Section 202 Cr.P.C in such cases is an
enquiry by way of recording statement of complainant and careful scrutiny
of documents relied upon by the complainant. Say, if a case against the
accused is filed under Section 138 of Negotiable Instruments Act and the
accused lives in Noida while the complainant lives in Delhi. The Magistrate
in such a case has only to consider if prima facie offence was committed or
not and if it has jurisdiction based on the documents i.e. whether the cheque
was dishonoured, whether the proper demand notice was sent and still
payment was not made etc. Similarly there are several statutes where the
offence is of technical nature and the commission of offence can be made
out from the documents, say the offences under the Companies Act, against
the directors of the company for violating the mandatory provisions
regarding filing of returns etc. The company may be registered in Delhi but
the director may be living in Noida or Gurgoan. In such a case, the
commission of offence has to be inferred only from the documents and the
enquiry under Section 202 Cr.P.C has to be limited to scrutiny of the
documents and recording of statement of the complainant and cannot go
beyond that.
9. What is the import of provisions of Section 202 Cr.P.C can be seen
from the decision of the Supreme Court in 2000(2) SCC 230 Rozy and
another vs. State of Kerala. In this case another provisions of sub Section
202, which is also couched in mandatory language had come into question
i.e. Section 202(2) proviso. This proviso provides that where the offence was
triable by the court of Sessions, the Magistrate shall call upon the
complainant to produce all his witnesses and examine them on oath. The
proviso is couched in mandatory words and the mandate is “He shall call
upon the complainant to produce all his witnesses and examine them on
oath”. The Supreme Court in this case observed that the issue of complying
with proviso to Sub Section 2 of Section 202 Cr.P.C would arise only in
cases where the Magistrate before taking cognizance of the case, decides to
hold enquiry and after enquiry if he decides to take the evidence of witnesses
on oath. The object and purpose of holding an enquiry or investigation under
Section 202 Cr.P.C is to find out whether there was sufficient ground for
proceeding against the accused or not and that holding enquiry or
investigation is not an mandatory course before issue of process against the
accused or dismissal of the complaint. It is an enabling provision to form an
opinion as to whether or not process should be issued and to remove from
his mind any hesitation that he may have fallen upon on mere perusal of the
complaint and consideration of complainant’s evidence on oath.
10. The Supreme Court further observed that the enquiry under Section
202 is of a limited nature. Firstly it is to find out whether there was a prima
facie case against a person accused of the offence in the complaint and
secondly to prevent the issuance of process in all such complaints that are
false or intended only to harass a person. In Kewal Krishan v Suraj Bhan
1980 Supp. SCC 499, the Supreme Court observed that what the Magistrate
has to do is to see whether on a cursory perusal of the complaint of the
complaint and the evidence recorded under preliminary enquiry under
Section 200 and 202 Cr.P.C there is prima facie evidence in support of the
charges leveled against the accused. About use of the word ‘shall’ in the
proviso to sub section 2, the Supreme Court made following observations:
“17. At initial stage, if objection is raised and it is found by the Sessions
Court that by non-holding of inquiry, prejudice is caused to the accused, he
may direct the Magistrate to follow the procedure prescribed under the
proviso. It is no doubt true that by the use of the words "shall", it appears
that language used in the proviso is of mandatory nature. At the same time, it
is a procedural law and it is to be read in context of Section 200 which
enables the Magistrate to issue process without holding any inquiry and that
inquiry under Section 202 is itself discretionary one giving option to
examine or not to examine witnesses. Hence, proviso to the said sub-section
is required to be read accordingly though couched in mandatory term by
using the word 'shall'. Normally, the procedure prescribed therein should be
followed, but non-observance of the said procedure may not vitiate further
proceedings in all cases. In a case where a complaint is filed, not by the
public servant, and where the offence is exclusively triable by the court of
Session the Magistrate should follow the proviso to sub-section (2) of
Section 202 and call upon the complainant to produce all his witnesses and
examine them on oath. This would be in consonance with the provision of
Section 208 which inter alia provides for supply of copy of statements and
documents to accused. This would also facilitate the Sessions Court in
framing the charge or discharging the accused. In the Sessions triable case,
under Section 226 the prosecution has to open its case by describing the
charge brought against the accused and stating by what evidence it proposes
to prove the guilt of the accused. On such submission, the Sessions Court is
required to consider the record of the case and the documents submitted
therewith and after hearing the submissions of the accused and prosecution
in this behalf, to decide whether there is sufficient ground or not for
proceeding against the accused. Upon such consideration, if the court finds
that there is no sufficient ground for proceeding against the accused, he shall
be discharged as provided under s. 227. In case, where there is sufficient
ground, court is required to frame the charge as provided under s. 228.
Hence, for the purpose of framing the charge also the recording of such
evidence is necessary. It also facilitates the accused to know allegation made
against him as well as evidence in support thereof. However, in a case where
complaint is filed by a public servant after holding inquiry and recording the
statements, question of recording of such evidence may not arise. Hence,
compliance of proviso by the Magistrate in all Sessions triable cases is not a
must and would not vitiate the further trial unless prejudice caused to the
accused is established.”
11. I, therefore, consider that in the present case where disclosure of
commission of offence was based on documentary evidence produced by the
complainant before the court and from the documents it was prima facie
clear that a commission of offence under Section 420 IPC has taken place,
no further enquiry could have been held by the Magistrate.
12. The learned counsel for the petitioner argued that in this case, the
allegations made by the complainant was that the accused had purchased
land on cheap rates and sold the same to the joint venture company owned
by him at very exorbitant rates. The Magistrate should have called for a
report from the Local SDM or police about the rates of land. I consider that
this argument is too far-fetched. What the learned MM had considered was
based on the documents itself and the testimony of the complainant. It was
not incumbent upon the Magistrate to make an enquiry about the prevalent
rates of land before issuing summons. The documents and other evidence
given by the complainant was sufficient to show that prima facie a fraud was
played upon by the accused/ petitioner.
13. In Rosy v State (supra) the Supreme Court also agreed with the
submission of counsel for the appellant that the provisions under Section 465
Cr.P.C would play a role at any stage and observed as under:
“18. Further, the aforesaid interpretation would be in consonance with
Chapter XXXV of the Cr.P.C., which deals with irregularities in the
proceedings, which may or may not vitiate the proceedings. Sections 460
and 461 provide which irregularities would or would not vitiate the
proceedings. In these sections, there in no mention of Section 202, For our
purpose reference to Section 465 would suffice, which inter alia specifically
provides that irregularity in the complaint, summons, warrant, order or other
proceedings before or during trial or in any inquiry shall not be a ground for
reversing order passed by the competent Court, unless in the opinion of that
Court a failure of justice has in fact been occasioned thereby. Sub-section (2)
further provides that in determining whether any irregularity in proceeding
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. Hence, the statute does not expressly provide for
nullification of the order as a consequence of non- compliance of proviso to
sub-section (2) of Section 202, but provides that unless prejudice is caused,
the order is not to be set aside. This would mean that during inquiry under
Section 202 when Magistrate examines the witnesses on oath, as far as
possible the proviso is to be complied with but the mandate is not absolute.”
14. I consider that the learned MM rightly issued summon as against the
petitioner/accused in this case and no further enquiry apart from the enquiry
already held by way of examination of witnesses of complainant and
examined documents was feasible in this case. The enquiry or investigation
under Section 202 Cr.P.C has to be done in all those cases where the case is
based only on oral evidence and accused lives beyond jurisdiction of court
verification about presence of accused or about such other factors like use of
telephone etc is involved and the Magistrate in all such cases mandatorily
hold an enquiry either himself or through police.
15. I find no force in this petition. The petition is hereby dismissed.
Sd/-
February 14, 2011 SHIV NARAYAN DHINGRA,
prabhakar singh
(Expert) 01 November 2011
Mr.Makkad has provided you more than sufficient.
Shonee Kapoor
(Expert) 01 November 2011
Great effort Ld. Mr. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Arun Kumar Bhagat
(Expert) 02 November 2011
Answer is revision maintainable in Sessions court against summoning order on the point of challenging non-compliance of sec.202 Cr.P.C only. What I could understand from this judgement.
