S.202 CrPC | Magistrate's Order Showing Application Of Mind Not Bad For “Absence Of Magic Words” About Prima Facie Satisfaction: Calcutta HC

The Calcutta High Court has recently held that before the issuance of process, in cases where a Magistrate comes to a prima facie conclusion regarding the reasons for summons to be issued against the accused, and if the order shows compliance and application of mind vis-à-vis holding of inquiry under 202 CrPC, then such an order could not be set aside on technical grounds.

A single-bench of Justice Bibek Chaudhuri in answering a common question in multiple criminal revision applications on whether an inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuance of process in a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act when the accused resides outside the territorial jurisdiction of the magistrate, held:

While issuing process the learned Magistrate adverted to the petition of complaint, evidence of the complainant affirmed under Section 145(1) of the N.I Act and the documents filed by the complainant. Thus, before issuance of process, the learned Magistrate obviously came to the conclusion that there are prima facie reasons to issue process against the petitioner and lastly, if the impugned order prima facie proves application of mind by the learned Magistrate in respect of compliance of mandatory provision under Section 202 of the Cr.P.C, the order cannot be set aside only on technical ground for absence of the magic words that inquiry under Section 202 was held and the learned Magistrate was satisfied that process should be issued against the accused.

The aforesaid common question came up in various criminal revisional applications arising out of proceedings on the dishonour of cheque under Sections 138 and 141 of the Negotiable Instruments Act (NI Act).

In perusing Section 202 CrPC, the bench observed that it made it mandatory for a magistrate to conduct an inquiry, or direct an investigation when the accused resides outside his territorial jurisdiction. If the magistrate at the end of such inquiry is satisfied that there is no grounds to proceed, then he may dismiss the complaint stating reasons under Section 203 CrPC.

However, if the magistrate was satisfied that summons had to be issued, then he would be empowered to do so under Section 204 CrPC.

In dealing with a Constitution Bench decision of the Supreme Court, the bench observed that under s. 138 NI Act (dishonour of cheque) cases, the Magistrate did not need to examine witnesses, but that even a perusal of documents making out a prima facie case would suffice. It held:

On this logic the Constitutional Bench in Suo Motu writ petition (2021) was pleased to hold that Section 202(2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of the grounds for proceeding under Section 202.

Petitioners in one of the applications submitted that they were residents of Gujarat, and that the Magistrate had issued process against them without holding any inquiry as envisaged in Section 202, which was a mandatory provision, in view of the observations of the SC in Suo Moto Writ Petition, 2021.

Respondents therein, submitted that for conduct of inquiry under Section 202, evidence of witnesses on behalf of the complainant can be taken on affidavit, and that the magistrate was empowered to restrict the inquiry to documents, without insisting on examining witnesses, as noted by the SC.

In evaluating all the contesting submissions, the Court examined the purpose behind Section 202 CrPC, and concluded that it was an attempt to prevent lodging of false FIR and to protect innocent persons residing outside the magistrate’s jurisdiction from unnecessary harassment.

It was held that when a magistrate, after scrutinising the record had prima facie come to a conclusion that process ought to be issued against the accused, residing outside their jurisdiction, and passed an order of summons under Section 204 CrPC, it would be obvious that Section 202 had been taken note of and complied with.

Accordingly, the Court found no merit in the petitioners’ submissions that the magistrate had issued process without complying with the mandatory provision of Section 202 CrPC, and therefore dismissed all the revisional applications.

Citation: 2023 LiveLaw (Cal) 279

Case: Pawan Kumar Agarwal -VsThe State of West Bengal & Anr. & connected applications

Case No: CRR 1956 of 2013 with connected applications

Click Here To Read/Download Order