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2020 DIGILAW 209 (GAU)

Nabajyoti Baruah v. Odi Jerang

2020-02-14

SANJAY KUMAR MEDHI

body2020
JUDGMENT : Sanjay Kumar Medhi, J. 1. The extra ordinary jurisdiction under Section 482 of the Code of Civil Procedure, 1973 is sought to be invoked by filing the present petition. The petitioners have prayed for quashing of the C.R. Case No. 24/2017 under Sections 120(B)/406/420/34 of the IPC pending in the Court of the learned Judicial Magistrate First Class (Jr. Division) Capital Complex at Yupia. The further challenge is regarding an order dated 2.5.2017 passed in the said case, whereby, the learned Judicial Magistrate First Class had taken cognizance against the petitioners. 2. The facts of the case may be summarised in the following manner. This Court is, however, not dealing with the facts in detail as the present challenge is mainly on technical and procedural aspects. (i). The respondent No. 1 as complainant had lodged the aforesaid complaint before the learned Court below, in which, amongst others, the present petitioners are accused. It is an admitted fact that the present petitioners who have been arrayed as accused Nos. 3 & 5 are residents of Azara in the District of Kamrup (M) in the State of Assam. The complaint has been lodged under Sections 120(B)/406/420/34 of the IPC. Though the details of the allegations are not necessary to be narrated, the complainant had alleged that an amount of Rs. 35,65,500/- was taken from her by the accused for the consideration of allotting a petrol pump in her name in the East Siang District. However, after parting with the money, nothing was done and accordingly, the compliant was lodged. (ii). The learned Magistrate vide order dated 02.05.2017 after examining the complaint under Section 200 of the Cr.P.C. and on perusal of the complaint petition, had issued summons against the accused persons for appearance. Since the validity of the aforesaid order is the subject matter of the present petition, the said order is extracted, herein, below: "02.05.2017 This complaint is filed by Ms. Odi Jerang against six persons namely Sh. Utpal Gogoi, Sh. Nutam Goswami, Sh. Nabajyoti Baruah, Sh. Dhimam Goswami, Sh. Semanta Boruah and Sh. Manojit Gogoi alleging inter- alia that they have conspired and cheated the complainant to make payment of Rs. Odi Jerang against six persons namely Sh. Utpal Gogoi, Sh. Nutam Goswami, Sh. Nabajyoti Baruah, Sh. Dhimam Goswami, Sh. Semanta Boruah and Sh. Manojit Gogoi alleging inter- alia that they have conspired and cheated the complainant to make payment of Rs. 35,65,500/- (Thirty Five Lakhs Sixty Five Thousand and Five Hundred) only on the pertex that they will given license for retail outlet dealership for petrol and diesel in between Ruksin and Pasighat and they duped the amount without providing licences. Deposition of the complainant is recorded u/s. 200 of Cr.P.C. Complainant affirmed her allegations made in the complaint petition in the deposition. Carefully perused the complaint petition and the deposition. Considering the allegation levelled in complaint petition and the depositions of the complainant, this Court is of considered view that there are sufficient grounds to proceed against the accused persons U/s. 120(B)/406/420/34 IPC. Therefore, cognizance has been taken against the accused persons under said sections. Issue summon against the accused persons for appearance on 29.06.2017. Counsel for the petitioner to take steps." (iii). Pursuant to receipt of summons, the present petitioners had appeared before the learned Magistrate and presently, the case is at the stage of framing of charges. 3. I have heard Shri A. Ganguly, learned counsel for the petitioners as well as Shri R. Sonar, learned counsel for the respondent No. 1/complainant. 4. The records which were called for by this Court have also been carefully perused. 5. Shri Ganguly, learned counsel for the petitioners, submits that the present challenge is basically on 2(two) grounds. The first ground is with regard to the territorial jurisdiction of the learned Court below. It is submitted that the no part of cause of action has arisen within the jurisdiction of the learned JMFC within the Capital Complex, Yupia and therefore, the learned Magistrate could not have proceeded with the matter. Secondly, it has been urged that there has been violation of the mandatory provisions of law regarding issuance of summons. It is submitted that admittedly, both the petitioners being residents outside the jurisdiction of the learned Magistrate, the provisions of Section 202 of the Cr.P.C. were required to be followed and failure to adhere to the same, has rendered the entire proceeding non-est in law. 6. It is submitted that admittedly, both the petitioners being residents outside the jurisdiction of the learned Magistrate, the provisions of Section 202 of the Cr.P.C. were required to be followed and failure to adhere to the same, has rendered the entire proceeding non-est in law. 6. Elaborating on his submission, the learned counsel has contended that no part of the transaction which is the subject matter of allegation has occurred under the territorial jurisdiction of Yupia and the alleged payment was made from Pasighat to the Bank accounts of the petitioners at Guwahati, therefore, under no circumstance, the complaint could have been entertained. On the second ground of challenge, it is submitted that the provisions of Section 202 of the Cr.P.C. is mandatory and ambiguity, if any, has been done away with by the amendment of 2005 by which "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" has been inserted. It is submitted under Section 202 of the Cr.P.C., a Magistrate before issuing process in case of an accused residing outside his jurisdiction is required to postpone the process and enquire into the case himself or direct an investigation for the purpose of deciding as to whether or not there is sufficient ground for proceeding. It is submitted that the legislature in its wisdom had incorporated the said provision to avoid undue harassment to any person who is impleaded as an accused and resides outside the jurisdiction of the Court. He further submits that incorporation of the term "shall" leaves no ambiguity in interpretation of the said Section that the requirement is a mandatory one which cannot be overlooked or done away with. In support of his submission, Shri Ganguly, learned counsel refers to the following decisions: (i). (2017) 3 SCC 528 (Abhjit Pawar Vs. Hemant Madhukar Nimbalkar & Anr.). (ii). 2017(5) GLT 811 : Crl Ptn. No. 359 of 2017 (Shri Bijay Kr. Man & Ors. Vs. The State of Assam & Ann) (iii). Crl. Pet. No. 971 of 2018 (Shri Kuljit Singh Sethi Vs. The State of Assam & Anr.) 7. (2017) 3 SCC 528 (Abhjit Pawar Vs. Hemant Madhukar Nimbalkar & Anr.). (ii). 2017(5) GLT 811 : Crl Ptn. No. 359 of 2017 (Shri Bijay Kr. Man & Ors. Vs. The State of Assam & Ann) (iii). Crl. Pet. No. 971 of 2018 (Shri Kuljit Singh Sethi Vs. The State of Assam & Anr.) 7. Shri Ganguly, learned counsel has submitted that the Hon'ble Supreme Court in the case of Abhjit Pawar (Supra) while dealing with the specific provision of Section 202 of the Cr.P.C. has held that the requirement is a mandatory one and failure to adhere to the same, will vitiate the proceeding. It is further submitted that this High Court in the aforesaid case of Shri Bijay Kr. Jalan and Shri Kuljit Singh Sethi (Supra) has reiterated the aforesaid observation. 8. On the other hand, Shri R. Sonar, learned counsel for the complainant/respondent No. 1 submits that though the complainant is a permanent resident of Pasighat, she presently resides at Itanagar under the jurisdiction of the learned Magistrate at Yupia and therefore, first ground of challenge is untenable in law. The learned counsel further submits that in spite of the amendment of the year 2005 to Section 202 of the Cr.P.C., the facts of the case would not justify the prayer made by the petitioners. While refuting the argument that the provisions of Section 202 are mandatory one, the learned counsel has submitted that the petitioners by their own conduct have forfeited their right to take the shelter under Section 202. He submits that the present petitioners had appeared before the learned Magistrate pursuant to the impugned order dated 02.05.2017 and are contesting the case which would be evident from the records of the case. He further submits that at no earlier point of time any objection, whatsoever, has been raised on the ground of non-compliance of Section 202 of the Cr.P.C. and it is, for the first time that such objection has been raised in the present petition filed in this Court in the year 2019. It is further submitted that in the meantime, 7(seven) witness have been examined out of which, 5(five) witness are Bank Officers coming from faraway place. It is further submitted that in the meantime, 7(seven) witness have been examined out of which, 5(five) witness are Bank Officers coming from faraway place. The conduct of the petitioners have been severely criticised by submitting that the petitioners have opted to cross-examine the witnesses of the complaint in the process of evidence before charge and therefore, it would be too late in the day to raise such objection on Section 202 of the Cr.P.C. 9. Shri R. Sonar, learned counsel has categorically submitted that Section 202 of the Cr.P.C. is procedural law and the same should not be interpreted to obstruct dispensation of substantial justice. He has also taken this Court to the provisions of Section 465 of the Cr.P.C. which lays down that no order of competent Court shall be reversed only because of certain technical error. In support of his submission, Shri Sonar, the learned counsel has relied upon the following decisions: (i). (2001) 7 SCC 679 (State of Madhya Pradesh Vs. Bhooraji & Ors.). (ii). (2000) 2 SCC 230 (Rosy & Ors. Vs. State of Kerala & Ors.) (iii). 2010 7 SCC 578 (Shivjee Singh Vs. Nagendra Tiwary & Ors.) 10. The case of Bhooraji (supra) has been cited to buttress the argument that under Section 465 of the Cr.P.C., technical irregularity would not vitiate an order, more so, when the present petitioners are already contesting the case before the learned Magistrate. The case of Rosy (supra) has been cited to support the submission that the provision of Section 202 of the Cr.P.C. is directory and non-compliance of the same, will not vitiate the procedure. 11. The case of the Shivjee Singh (supra) has been cited in support of the submission that while interpreting the term "Shall", the purpose and meaning has to be taken into account and mere use of the word "shall" per se, would not make the provision mandatory. 12. Re-joining his submission, Shri Ganguly, learned counsel for the petitioners submit that the case of Rosy (supra) was prior to the amendment of the year 2005 and therefore, the Hon'ble Supreme Court had held the said provision to be directory which, however, has been amended by the Act of 2005 wehreafter, the case of Abhjit Pawar (Supra) has been decided holding the same to be mandatory. 13. The rival submissions made by the learned counsel have been duly considered. 14. 13. The rival submissions made by the learned counsel have been duly considered. 14. For proper adjudication of the issue in dispute, the relevant provisions of law i.e. Sections 202 and 465 Cr.P.C. are quoted, herein, below: "...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, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant." "...465. Finding or sentence when reversible by reason of error, omission irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 15. The object of inserting Section 202 of the Cr.P.C. is to avoid unnecessary harassment to persons who are arraigned as accused. The legislature in its wisdom has incorporated an extra precaution by which the Magistrate is required to come to a satisfaction after an enquiry or investigation as to whether there are sufficient materials to proceed against the accused persons. Examining from that perspective, mere fact that the present petitioner have appeared before the learned Magistrate after receipt of summons will not obliterate the requirement of law of the learned Magistrate to come to a conclusion of availability of enough materials to proceed in the case. Though a submission has been made on behalf of the complainant that sufficient time has elapsed since filing of the complaint and in the meantime 7(seven) numbers of witnesses have already been examined and cross-examined, what is required to be seen is the stage of the proceeding, which, in the instant case is at the stage of framing of charges after adducing the evidence by the witnesses. Therefore, the ground of delay taken by the complainant cannot be countenanced. 16. The Hon'ble Supreme Court in the case of Abhjit Pawar (Supra) was dealing with an identical situation. It has been laid down that the issue being a pure illegal issue, it can be raised for the first time even in the High Court. A similar argument was advanced before the Hon'ble High Court in the said case which was dealt with in the following manner. The observations of the court which are relevant to the present case are also extracted herein below: "..23. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercise his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercise his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22.06.2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction". There is vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. 24. The essence and purpose of this amendment has been captured by this Court in Vijay Dhanuka v. Najima Mamtaj in the following words: (SCC P. 644, Paras 11-12) "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" was inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd of June, 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 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 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." "...30. No doubt, the argument predicted on Section 202 Cr.P.C. was raised for the first time by A-l before the High Court. Notwithstanding the same, being a pure legal issue which could be tested on the basis of admitted facts on records, the High Court could have considered this argument on merits. It is a settled proposition on law that a pure legal issue can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter (See: National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad.)" 17. It is a settled proposition on law that a pure legal issue can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter (See: National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad.)" 17. Though the decision of the Hon'ble Supreme Court in the case of Rosy (supra) has been pressed into service by the learned counsel for the complainant, this Court is of the opinion that the decision rendered in that case being prior to the amendment of 2005, the ratio would not be applicable and rather the ratio laid down by the Hon'ble Supreme Court in the case of Abhjit Pawar (Supra), which is post amendment and specifically on Section 202 of the Cr.P.C. is rather applicable. The argument that procedural law should not obstruct justice as advanced on behalf of the complainant, would not be applicable in the instant case, inasmuch as, the provision of Section 202 of the Cr.P.C. has been held to be mandatory in nature. The recourse taken by the complainant upon Section 465 of the Cr.P.C., would also not be of any assistance, inasmuch as, the Section started with a condition "subject to the provisions hereinbefore". In any case violation of a mandatory provision cannot be termed as a mere error or irregularity which can be cured under Section 465, more so, when in the instant case, charges are yet to be framed by the learned Magistrate. 18. In view of the aforesaid facts and circumstances, this Court is of the opinion that a case for interference in exercise of powers under Section 482 of the Cr.P.C. is made out due to noncompliance of the provisions of Section 202 of the Cr.P.C. This Court however, makes it clear that the interference is only on the aforesaid provision and not on the question of lack of territorial jurisdiction, which is left open to be decided by the appropriate Court. 19. In view of the above, the impugned order dated 02.05.2017 of issuing process to the present petitioners is set aside. It is however, made clear that the learned Magistrate would be at liberty to adhere to the provisions as laid down under Section 202 of the Cr.P.C. before issuing process to the petitioners who are admittedly residents outside the jurisdiction of the learned Court below. It is however, made clear that the learned Magistrate would be at liberty to adhere to the provisions as laid down under Section 202 of the Cr.P.C. before issuing process to the petitioners who are admittedly residents outside the jurisdiction of the learned Court below. It is consequently, directed that the trial would have to be started denovo and in accordance with law. 20. The Criminal petition is accordingly disposed off.