Allowed

Bipul Parua v. Kakali Jena

Orissa HC16 Sept 2016CRLMC/211/2009

Case brief

AI extract

What is this about?

The High Court allowed an application under section 482 Cr.P.C. to quash an order of cognizance and non-bailable warrant. It held that the Magistrate violated section 202 Cr.P.C. by failing to conduct an inquiry or direct investigation before issuing process against an accused residing outside territorial jurisdiction, and errantly issued a non-bailable warrant immediately.

What did the court decide?

The impugned order dated 06.06.2008 is set aside, and the matter is remitted to the Magistrate to pass fresh orders complying with section 202 Cr.P.C. within two months.

Bipul Parua Vs Kakali Jena — Civil Procedure and Limitation | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA: CUTTACK

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CRLMC NO. 211 OF 2009

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An application under section 482 of the Code of Criminal Procedure, 1973 in connection with I.C.C. Case No. 111 of 2008 pending on the file of J.M.F.C., Jaleswar.

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Bipul Parua ……… Petitioner
-Versus-
Kakali Jena & Another ……… Opposite parties
For Petitioner: - Mr. Rajesh Kumar Mohapatra
For Opp. Party no. 2: - Mr. Tapas Kumar Praharaj Addl. Standing Counsel ----------------------

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P R E S E N T:-

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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-----------------------------------------------------------------------Date of Hearing and Judgment- 16.09.2016 ------------------------------------------------------------------------

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S. K. SAHOO, J . This is an application under section 482 of Cr.P.C.

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filed by the petitioner Bipul Parua challenging the order dated 06.06.2008 passed by the learned J.M.F.C., Jaleswar in I.C.C. No.111 of 2008 in taking cognizance of offences punishable under sections 341, 354 and 394 of the Indian Penal Code and issuance of non-bailable warrant of arrest against him.

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It is the prosecution case as per the complaint

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petition filed by the opposite party no.1 Smt. Kakali Jena that after her dispute with her husband, she was residing at her father’s place and the petitioner was very closely related to her father and he use to come to her father’s place and in that process, the complainant got acquaintance with the petitioner. The petitioner assured the complainant to arrange a job for her in any private nursing home. On 30.04.2008 at about 4.00 p.m. the petitioner came to the father’s place of the complainant and took her in a Hero Honda motor cycle towards Jaleswar as she was told to join her service by evening. It is the further case of the complainant that she brought gold ornaments as well as cash of Rs.10,000/- with her and the petitioner reached at Karmada at about 10.00 p.m. and stopped the motor cycle and asked the complainant to wait in a waiting room so that he can bring some tiffin for both. The petitioner returned after some time, sat near the complainant and outraged her modesty. The petitioner took away the gold ornaments of the complainant so also cash. When the complainant shouted, others arrived there and they caught hold of the petitioner who confessed his guilt and requested them to settle the matter which was fixed to the next day. The

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witnesses kept the petitioner in the night with them but cunningly the petitioner escaped with his vehicle.

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A first information report was lodged before Officer in charge, Kamarda Police Station on 10.05.2008 but no action was taken on the report and it was not even registered as the petitioner was an outsider and accordingly, the complaint petition was filed.

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The learned Magistrate recorded the statement of the complainant-opposite party no.1 under section 200 Cr.P.C. and after going through the complaint petition as well as the statement of the complainant found prima facie case under sections 341/354/394 of the Indian Penal Code and accordingly, took cognizance of such offences and since the offences under sections 354/394 of the Indian Penal Code are non-bailable in nature, he directed for issuance of non-bailable warrant of arrest against the petitioner.

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Learned counsel for the petitioner Mr. Rajesh Kumar Mahapatra, while challenging the impugned order of cognizance and issuance of process contended that the impugned order is vitiated in the eye of law inasmuch as the mandatory provisions as envisaged under section 202 Cr.P.C. has not followed. He further submitted that the petitioner who is an accused in this

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case is a man of East Mednipur, West Bengal and therefore, when he was residing at a place beyond the jurisdiction of learned J.M.F.C., Jaleswar, without conducting any inquiry or directing an investigation as required under section 202 of Cr.P.C. in view of the amendment which came into force on 23.06.2006, the impugned order should not have been passed.

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Learned counsel for the petitioner placed reliance in case of Parshotam Lal Vadera –Vrs.- Satyanarayan Sadangi reported in (2006) 35 Orissa Criminal Reports 371, Lilasons Breweries Limited & another –Vrs.- Sujata Manjari Pati reported in (2009) 43 Orissa Criminal Reports 5 and L.P. Electronics (Orissa) Pvt. Ltd. & Others –Vrs.- Tirupati Electro Marketing Pvt. Ltd. reported in 2013 (II) Orissa Criminal Reports 318 .

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None appeared on behalf of the opposite party no.1.

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Mr. Tapas Kumar Praharaj, Learned Addl. Standing Counsel for the State opposed the prayer made by the learned counsel for the petitioner and contended that there is no illegality or infirmity in the order of taking cognizance and issuance of process and therefore, the application should be dismissed.

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The sole point which arises for decision in this case is whether the impugned order of taking cognizance and issuance of process is vitiated in the eye of law as the learned Magistrate has not conducted any inquiry or directed an investigation before issuance of process as envisaged under section 202 of Cr.P.C. even though the petitioner was residing at a place beyond the jurisdiction of the Magistrate.

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Section 202 of Cr.P.C. deals with postponement of issue of process. The 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 of the Code may if he thinks fit, postpone the issue of process against the accused only when the thinks of necessity for postponing the same. Postponement is deferment or to suspend. What is deferred or suspended by the Magistrate for the time being is the issue of process not the order of taking cognizance. The purpose of postponing the issue of process and making an inquiry or directing an investigation is for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused named in the complaint petition. The procedure under section 202 of the Code is to be followed when the Magistrate decides to postpone the issue of process. In some complaint

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cases, on the basis of the materials available, even without examining the complainant or his witnesses present or directing the complainant to examine his witnesses as provided under the first proviso to section 200 Cr.P.C., if the Magistrate feels that prima facie case is well made out, he has sufficient jurisdiction to take cognizance and as a visible manifestation of taking cognizance, process can be issued straightway and in that event, procedure under sections 200 and 202 ceases to remain very material. Even after recording the initial statement of the complainant and his witnesses’ u/s.200 Cr.P.C., if the Magistrate feels that there is sufficient ground for proceeding against the accused, he may without resorting to section 202 Cr.P.C. can straightway issue process against the accused. In other words, after recording such statements as provided under section 200 Cr.P.C., if the Magistrate thinks that these materials are not sufficient for issue of process, he may defer the issue of process to collect some more materials to come to a finding that there is sufficient ground for proceeding and only then he can issue process u/s.204 Cr.P.C. Once cognizance is taken and process is issued, it can be either in the form of issuing summons or warrants as the case may be. It is also not a condition precedent for issuing process that the Magistrate must invariably hold an

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enquiry as contemplated by section 202 of the Code or must direct the investigation to be made. The power to take cognizance without holding enquiry appears to be implicit under section 202 inasmuch as section 202 opens with the words, ‘postponement of the issue of the process’. In other words, in case the Magistrate does not want to postpone of the process, in that event procedure under section 202 becomes redundant and not to be followed. When the Magistrate postpones the issue of the process, only in that event he can follow the procedure under section 202 of the Code.

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Section 202 of Cr.P.C. was amended by the Code of Criminal Procedure (Amendment) Act, 2005 (section 19) and the following words were inserted.

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“ and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction .”

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The notes on clauses for the above-mentioned amendment read as follows:

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“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

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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.”

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The amendment has come into force w.e.f. 23.06.2006 vide Notification No. S.O. 923 (E) dt. 21.06.2006. By virtue of this amendment, the mandate has been provided for the Magistrate to conduct an inquiry or direct an investigation as provided u/s 202(1) of the Code, in a complaint case where the accused is residing at a place beyond the area in which he exercises his jurisdiction for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused.

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The use of word “shall” in the amended provision signifies the sense of “must” and raises a presumption that the particular provision is imperative and imposes an obligation. It is pertinent to note that the word “may” is issued for postponing the issue of process in the complaint cases where the accused resides within the jurisdiction of the Magistrate whereas the word “shall” is used for postponing the issue of process in all

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complaint cases where the accused resides at a place beyond the area of the jurisdiction of the Magistrate.

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Thus in view of this mandatory provision, the Magistrate has no option but to postpone the issue of process and conduct an inquiry himself or pass direction for investigation in all such complaint cases where even one of the accused (not necessarily all the accused) resides at a place beyond the area in which he exercises his jurisdiction.

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In case of Parshotam Lal Vadera -Vrs.Satyanarayan Sadangi reported in (2006) 35 Orissa Criminal Reports 371 , it is held as follows:-

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“15. A reading of the amended provision coupled with the proviso to section 202 (1) leads to an irresistible conclusion that the Legislature in its wisdom while obliterating investigation so far as offences triable exclusively by a Court of session, or where the complainant and the witnesses present have been examined on oath under Section 200, has not touched the power or authority of Court to inquire into the case itself. In other words, in a given case, where clauses (a) and (b) of the Proviso to section 202 (1) are satisfied, a Magistrate shall not direct an investigation to be made by police or such other person as be may think fit, but then, he shall

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inquire into the case himself. The later power is not taken away from him and insertion of the words "and shall, ...jurisdiction" make it mandatory for the Magistrate to inquire into the case himself in a case where the accused is residing beyond his territorial jurisdiction. According to this Court, a recent amendment/intention of the Legislature has to be given precedence over the earlier ones. In the instant case, as the impugned order reveals, the Learned Magistrate never inquired into the case himself before directing issue of process to the petitioner. In view of the fact that the petitioner is residing beyond its jurisdiction, it was incumbent upon the Magistrate to postpone issue of process and inquire into the allegations made in the complaint petition himself. The question posed thus stands answered.”

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In case of Lilasons Breweries Limited & another

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-Vrs.- Sujata Manjari Pati reported in (2009) 43 Orissa

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Criminal Reports 5 , it is held as follows:-

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“5. The amended provision contained in section 202(1) of the Cr.P.C. makes it mandatory on the part of the Magistrate to postpone the issue of process against the accused in a case where the accused is residing beyond the area in which the learned Magistrate exercises his jurisdiction and to either enquire

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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. Admittedly, in the present case the accused persons reside beyond the area in which learned S.D.J.M., Bhubaneswar exercises jurisdiction. It is evident that learned S.D.J.M., Bhubaneswar did not issue processes against the accused persons immediately after presentation of the complaint petition and examination of the complainant. On the contrary, after recording initial statement of the complainant on 26.02.2007, issue of processes was postponed till 20.03.2007 in order to conduct enquiry under section 202 Cr.P.C. It is a different matter that the complainant did not choose to examine any witness in course of such enquiry. Therefore, there is no basis to allege non-compliance of amended provision under section 202(1) of the Cr.P.C.”

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In case of L.P. Electronics (Orissa) Pvt. Ltd. &

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Others -Vrs.- Tirupati Electro Marketing Pvt. Ltd. reported

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in 2013 (II) Orissa Law Reviews 318 it is held as follows:-

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“9………………..The expression ‘and shall, in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his

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jurisdiction’ appearing in sub-section (1) of section 202 Cr.P.C. was inserted by way of amendment by Act 25 of 2005 (w.e.f. 23.06.2006)

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xxx

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xxx xxx xxx

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In a complaint under section 138 of the N.I. Act there may not be more witnesses than the complainant himself to be examined during enquiry as because the case primarily rests on documentary evidence. Therefore, during enquiry under section 202 Cr.P.C., the complainant may not chose to examine any other witness, in which event the enquiry may relate only to scrutiny or examination of the documents filed by the complainant along with the complaint petition. Whatever be the nature of enquiry, it is the mandate that the Magistrate much conduct an enquiry in order to find out a prima facie case for the purpose of issuance of process.

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In the instant case, the complaint case records reveal that the complaint was never posted for enquiry. Therefore, there has been an infraction of the mandatory provision of sub-section (1) of section 202 Cr.P.C. and, therefore, such infraction vitiates the order taking cognizance and directing issuance of process.”

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In case of National Bank of Oman -Vrs.-

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Barakara Abdul Aziz & Anr. reported in (2013) 54 Orissa Criminal Reports (SC) 861 , it is held as follows:-

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“5. We find no error in the view taken by the High Court that the C.J.M. Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 of the Cr.P.C. 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 C.J.M., Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 of the Cr.P.C. before issuing the process.

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The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. 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 of the Cr.P.C. is different from the investigation contemplated in Section

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156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. 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.

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xxx

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xxx xxx xxx

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We are of the view that the High Court has correctly held that the above-mentioned amendment was not noticed by the C.J.M., Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. 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 of the Cr.P.C. Hence, we remit the

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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 of the I.P.C. The C.J.M. will pass fresh orders after complying with the procedure laid down in Section 202 Cr.P.C., within two months from the date of receipt of this order.”

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In case of Udai Shankar Awasthi -Vrs.- State of

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U.P. reported in (2013) 2 Supreme Court Case 435 , it is

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held as follows:-

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“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 the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or

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by such other persons 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”.

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Considering the submissions made by the learned counsel for the petitioner and the fact that the petitioner who is an accused in the complaint case is a resident of village Bajabadia under Bhagabanpur Police Station in the district of East Mednipur, West Bengal and the complaint petition was filed in the Court of J.M.F.C., Jaleswar and the place of residence of the petitioner is beyond the area in which the Magistrate exercises jurisdiction, I am of the view that the Magistrate before issuance of process should have followed the procedure as laid down under section 202 of Cr.P.C.

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Another illegality has been committed by the learned Magistrate in the impugned order that after taking cognizance of offences in a complaint case, he has straight away issued nonbailable warrant of arrest on the ground that the offences under sections 354/394 of the Indian Penal Code are non-bailable in nature.

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In case of Inder Mohan Goswami & Anr. -Vrs.-

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State of Uttaranchal & Ors. reported in (2008) 39 Orissa Criminal Reports (SC) 188 , it is held as follows:-

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“54. In complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. If the accused seems to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to.”

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Since it is a complaint case and after taking cognizance, at first instance the learned Magistrate has issued non-bailable warrant, such order is also not sustainable in the eye of law.

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Law is well settled that the inherent jurisdiction of the High Court under section 482 of Cr.P.C. though wide has to be exercised sparingly, carefully and with caution. If any abuse of process leading to injustice is brought to the notice of the Court or if any statutory bar before issuance of process has been overlooked then the High Court would be fully justified in invoking its inherent power to prevent miscarriage of justice.

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The law relating to exercise of power under section 482 Cr.P.C. has seen crystallized in case of R.P. Kapur -Vrs.-

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State of Punjab: A.I.R. 1960 S.C.866, Smt. Nagawwa -Vrs.- Veeranna Shivalingappa : A.I.R. 1976 S.C. 1947, State of Karnataka -Vrs.- L. Muniswamy : A.I.R. 1977 S.C. 1489, Janta Dal -Vrs.- H.S. Chowdhary : A.I.R. 1993 S.C. 892, Dr. Raghubir Sharan -Vrs.- State of Bihar : A.I.R. 1964 S.C.1, State of Haryana -Vrs.- Bhajan Lal : A.I.R. 1992 S.C. 604, Zandu Pharmaceutical -Vrs.- Mohd. Sharaful Haque : (2005) 30 Orissa Criminal Reports (SC) 16, Devendra -Vrs.- State of Uttar Pradesh : (2009) 43 Orissa Criminal Reports (SC) 680, State of A.P. -Vrs.Gauri Sheety Mahesh : (2010) 11 Supreme Court Cases 226, M. Mohan -Vrs.- The State: (2011) 48 Orissa Criminal Reports (SC) 961 .

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It seems that the learned Magistrates while passing the impugned order has neither followed the mandatory provisions under section 202 Cr.P.C. nor kept the settled principle of law in mind.

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Accordingly, the CRLMC application is allowed and the impugned order dated 06.06.2008 passed by the learned J.M.F.C., Jaleswar in I.C.C. No. 111 of 2008 is set aside. The

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matter is remitted to the Court of learned J.M.F.C., Jaleswar for passing fresh order after complying the procedure laid down under section 202 of Cr.P.C. within two months from the date of receipt of this order. It is made clear that if after complying the procedure as laid down under section 202 of Cr.P.C., the Magistrate is of the opinion that there is sufficient ground for proceeding then he is at liberty to proceed in accordance with section 204 of Cr.P.C.

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.............................. S. K. Sahoo, J.

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Orissa High Court, Cuttack The 16^th September, 2016/Sukanta

Bipul Parua v. Kakali Jena

Case brief

What is this about?

What did the court decide?

Bipul Parua v. Kakali Jena

Case brief

What is this about?

What did the court decide?

What the court decided

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