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2016 DIGILAW 1129 (ORI)

A. S. GANESAN v. SRI GANGADHAR SAHU

2016-11-21

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. - This application under Section 482 of Cr.P.C. has been filed by the petitioners challenging the order dated 04.12.2009 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No. 3042 of 2009 in taking cognizance of the offence under Section 420 of the Indian Penal Code and issuing process against them. 2. The sole contention raised by Mr. Asok Mohanty, learned Senior Advocate while challenging the impugned order of taking cognizance and issuance of process is that since it is a complaint case and the accused petitioners are residing at a place beyond the area in which the learned S.D.J.M., Bhubaneswar exercises his jurisdiction, in view of the mandate under Section 202(1) of the Cr.P.C., the learned Magistrate should not have issued process without resorting to inquiry as contemplated under Section 202 of Cr.P.C. and therefore, the impugned order is not sustainable in the eye of law. 3. On perusal of the impugned order, it is apparent that the learned S.D.J.M., Bhubaneswar on perusal of the complaint petition, initial statement and documents available on record came to hold that the prima facie evidence for offence under Section 420 of Cr.P.C. is made out and accordingly, cognizance was taken and summons was issued against the petitioners for their appearance. Thus there is no dispute that the inquiry as contemplated under Section 202 of Cr.P.C. has not been conducted in this case. 4. Section 202 of the Cr.P.C. was amended by the Code of Criminal Procedure (Amendment) Act, 2005 (Section 19) and the following words were inserted "and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction." 5. The notes on clauses for the above mentioned amendment read as follows : "False complaints are filed against persons residing at far off places simply to harass them. The notes on clauses for the above mentioned amendment read as follows : "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." The amendment has come into force w.e.f. 23.06.2006 vide Notification No. S.O. 923(E) dated 21.06.2006. 6. By virtue of this amendment, the mandate has been provided for the Magistrate to conduct an inquiry or direct an investigation as provided under Section 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. 7. 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 used for postponing the issue of process in all 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 complaint cases where the accused resides at a place beyond the area of jurisdiction of the Magistrate. When the legislature has used "shall" and "may" in the same section, they cannot be loosely construed so as to carry the same meaning. Therefore, in view of the abode of the petitioners i.e. Salem, Tamilnadu which is outside the Jurisdiction of the Magistrate, no option has been left at than to postpone the issue of process and conduct an inquiry himself or pass direction for investigation. 8. Therefore, in view of the abode of the petitioners i.e. Salem, Tamilnadu which is outside the Jurisdiction of the Magistrate, no option has been left at than to postpone the issue of process and conduct an inquiry himself or pass direction for investigation. 8. In case of Lilasons v. Sujata Manjari Pati reported in (2009) 43 OCR 5, where the accused in a complaint case was residing beyond the jurisdiction of the learned S.D.J.M., Bhubaneswar and the learned Magistrate after receipt of the complaint petition recorded the initial statement of the complainant and posted the case for enquiry to several dates but since the complainant declined to adduce any evidence in the enquiry, the learned Court took cognizance of offences and issued process, this Court found that there is basis for alleging non-compliance of amended provision under Section 202(1) of Cr.P.C. 9. In case of National Bank of Oman v. Barakara Abdul Aziz reported in (2013) 54 OCR (SC) 861, the C.J.M., Ahmednagarupon perusal of the complaint petition and the documents attached thereto held that there are sufficient materials against the accused and accordingly, issued process for offences under Section 418 and 420 of I.P.C. The C.J.M. failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. since the accused was residing outside the jurisdiction of the C.J.M., Ahmednagar. Though the High Court quashed the complaint on that ground, the Hon'ble Supreme Court held that 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. and accordingly remitted the matter to the C.J.M. Ahmednagar for passing fresh orders after complying with the procedure laid down in section 202 Cr.P.C. without being influenced by the observation of the High Court that no prima facie case for issuance of process under Section 418 or 420 of the I.P.C. is made out against the accused. 10. 10. In view of the above discussion, I am of the view that the impugned order dated 04.12.2009 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No. 3042 of 2009 is not sustainable in the eye of law and accordingly, the order of taking cognizance under Section 420 of the Indian Penal Code stands quashed The matter is remitted back to the learned S.D.J.M., Bhubaneswar for conducting inquiry as contemplated under Section 202 of the Cr.P.C. Thereafter, if the Magistrate finds that there is sufficient ground for proceeding then he can take recourse to Section 204 of the Cr.P.C. and it finds that there-is no sufficient ground for proceeding then he can recourse to Section 203 of the Cr.P.C. This Court has not expressed any opinion on the merits of the case and the learned S.D.J.M., Bhubaneswar is free to pass fresh order in exercising his jurisdiction in accordance with law. 11. Since the case relates to the year 2009, the learned Magistrate shall take expeditious steps for disposal of the case in accordance with law. 12. With the aforesaid observations, the Criminal Misc. Case is disposed of. Final Result : Disposed Of