2008 (7) TMI 1051 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation of the amendment to Section 202 Cr.P.C. by Act 25 of 2005.
2. Applicability of the amendment to prosecutions under Section 138 of the Negotiable Instruments Act.
3. Determination of whether the stipulation in the amendment is directory or mandatory.
4. Necessity of conducting an enquiry under Section 202 Cr.P.C. after recording the sworn statements under Section 200 Cr.P.C.
5. Consequences of non-compliance with the amended Section 202 Cr.P.C. in issuing process under Section 204 Cr.P.C.

Detailed Analysis:

1. Interpretation of the Amendment to Section 202 Cr.P.C. by Act 25 of 2005:
The amendment to Section 202 Cr.P.C. introduced the words "and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction." The key question was whether this stipulation is directory or mandatory. The court noted that the amendment aimed to prevent harassment of accused persons residing outside the jurisdiction of the Magistrate by ensuring a more cautious approach before issuing process.

2. Applicability of the Amendment to Prosecutions under Section 138 of the Negotiable Instruments Act:
The court concluded that the amended Section 202 Cr.P.C. applies to prosecutions under Section 138 of the Negotiable Instruments Act. This is consistent with Section 4(2) of the Cr.P.C., which states that the provisions of the Code apply unless specifically excluded by the special law.

3. Determination of Whether the Stipulation in the Amendment is Directory or Mandatory:
The court discussed the difference between mandatory and directory provisions, emphasizing that non-compliance with a mandatory provision renders proceedings void, while non-compliance with a directory provision does not. The court concluded that the stipulation in the amendment, although couched in mandatory language, is directory in nature. This is because the purpose of the enquiry under Section 202 Cr.P.C. is to determine whether there is sufficient ground for proceeding, and if this satisfaction can be achieved at the end of the enquiry under Section 200 Cr.P.C., further enquiry under Section 202 Cr.P.C. is not necessary.

4. Necessity of Conducting an Enquiry under Section 202 Cr.P.C. after Recording the Sworn Statements under Section 200 Cr.P.C.:
The court held that if the requisite satisfaction for proceeding under Section 203/204 Cr.P.C. can be entertained based on the materials available after the enquiry under Section 200 Cr.P.C., it is not necessary to conduct a further enquiry under Section 202 Cr.P.C. The court emphasized that the purpose of the enquiry is to determine whether there is sufficient ground for proceeding, not to engage in a ritualistic process.

5. Consequences of Non-Compliance with the Amended Section 202 Cr.P.C. in Issuing Process under Section 204 Cr.P.C.:
The court concluded that non-compliance with the amended Section 202 Cr.P.C. does not ipso facto vitiate the cognizance taken or the process issued. The court stated that the requirement of conducting an enquiry under Section 202 Cr.P.C. is directory, and if the requisite satisfaction can be entertained based on the materials available, the non-compliance does not render the proceedings void.

Judgments:
1. Crl.M.C. No. 292 of 2008: The court dismissed the petition, holding that the cognizance taken and the issue of process do not warrant interference. The court found that there were adequate materials to induce the requisite satisfaction that there is sufficient ground to proceed.

2. Crl.M.C. No. 2247 of 2008: The court allowed the petition, directing the Magistrate to consider the question of issue of process on the basis of the available materials without proceeding to conduct a further enquiry under Section 202 Cr.P.C. The court set aside the direction to produce loan documents and examine the complainant further.

Conclusion:
The court provided a detailed analysis of the amendment to Section 202 Cr.P.C., concluding that while the amendment applies to prosecutions under Section 138 of the N.I. Act, the stipulation for conducting an enquiry under Section 202 Cr.P.C. is directory and not mandatory. The court emphasized the importance of the Magistrate's satisfaction that there is sufficient ground for proceeding and held that non-compliance with the amended Section 202 Cr.P.C. does not automatically vitiate the cognizance taken or the process issued.