Summons U/S 204 CrPC Can't Be Issued To Accused Residing Outside Magistrate's Jurisdiction Without Holding Inquiry U/S 202 CrPC: Calcutta HC

The Calcutta High Court on Monday held that before issuing summons to an accused under Section 204 of the CrPC, a Magistrate has to mandatorily hold an inquiry under Section 202 of the CrPC. 

Justice Ananda Kumar Mukherjee held that the scope of such enquiry under section 202 CrPC is 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 defense that the accused may have.

The Court therefore set aside an order of the concerned Magistrate issuing summons to the accused (residing outside its jurisdictional limits) after observing that the Magistrate had merely conducted an inquiry under Section 200 of the CrPC and not under Section 202 of the CrPC. 

"In the case under considering the learned Magistrate did not hold any inquiry under section 202 of Cr. P.C though it is apparent from the complaint that the accused resided outside the jurisdiction of the court where the complaint has been lodged. Learned Magistrate on the other hand held an inquiry under section 200 of Cr. P.C simpliciter and only examined the complainant and no other witness or document", the Court observed. 

Background 

The petitioner had preferred the instant revision petition under Section 482 CrPC praying for quashing of criminal proceedings pending before Judicial Magistrate, 6th Court at Alipore, South 24 Parganas under Section 420 (cheating and dishonestly inducing delivery of property) and Section 406 (criminal breach of trust) of IPC.

The allegation against the petitioner was that after resigning from service, he misappropriated some valuable documents including one laptop. It was further alleged that the petitioner had intentionally cheated the company to the tune of Rs. 1.5 lakhs causing wrongful loss to the company and wrongful gain for himself. It was also alleged that the petitioner had committed breach of trust by violating the terms and condition of service with the company in this regard. 

Arguments 

The counsel for the petitioner argued that criminal proceedings had been initiated in a spiteful manner in order to harass the petitioner. It was further submitted that lodging of such a frivolous complaint is an abuse of the process of law and accordingly prayed for quashing of the criminal proceedings.

Pertinently, it was argued that the petitioner is a resident of New Delhi but before issuing process under Section 202 CrPC, the concerned Magistrate did not abide by the mandatory provision under Section 202 (1) of CrPC which mandates the Magistrate to conduct an inquiry. It was also submitted that the Magistrate had failed to take into account that the petitioner resides at a place beyond the area in which the Magistrate exercises his jurisdiction.

Observations 

The Court at the outset observed that it is undisputed that the petitioner resides in Delhi and thus he resides outside the jurisdiction of the Magistrate who issued summons in this case. The Court further noted that there is no document available on record that prove that the petitioner had retained any valuable document or laptop or he was ever asked to return any valuable document or laptop to the company after his release.

Reliance was also placed on the Experience Certificate which disclosed that the employer company had found the petitioner sincere, hardworking and a keen learner. Accordingly, the Court remarked,

"A certificate issued in favour of the petitioner to this extent demolish the allegations made in paragraph 8 of the complaint. Therefore, the conduct of the accused described in paragraph 7 and 8 of the complaint do not attract the ingredients of the offence of cheating against the petitioner by itself without further material, nor is there any element of entrustment of valuable articles."

The Court further referred to the judgment in Taylor V. Taylor (1876) 1 Ch.D, 426 wherein it had been held that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. Opining that in the instant case, the Magistrate had not compiled with the mandatory provision under Section 202 of CrPC, the Court further remarked, 

"Therefore, the mandatory provisions regarding inquiry under section 202 of Cr. P.C has to be complied by examination of complainant and other sighted witnesses, without which it cannot be ruled out for certainty that the allegations made in paragraph 8 of the complainant are unfounded to attracted the offence under section 420 of IPC or 406 of the IPC."

Reliance was also placed on the Supreme Court judgment in National Bank of Oman V. Barakara Abdul Aziz wherein it had been held that the Magistrate receiving a complaint is duty bound under Section 202 of CrPC to find out if there is any matter which calls for investigation by a criminal court. 

Accordingly, the Court set aside the order dated March 15, 2016 wherein the Magistrate had issued summons to the petitioner and further observed, 

"The decision relied upon in National Bank of Oman, squarely applies to the present case and I find that learned Magistrate has a committed an error of law by issuing summons against the accused petitioner under section 204 of Cr. P.C without holding inquiry under section 202 of Cr. P.C. which is proscribed. Accordingly order dated 15.03.2016 issuing summons upon the petitioner/ accused is found improper and is set aside."

The Court thus allowed the revision petition and further remitted the matter to the concerned Magistrate for passing order afresh after complying with the procedure laid down in Section 202 of CrPC. The said inquiry should preferably be completed within two months from the date of receipt of the order, the Court directed further. 

Case Title: Divyajot Singh Jendu v. Manikaran Analytics Limited

Citation: 2022 LiveLaw (Cal) 20.

Click Here To Read/Download Order