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TMI Blog2009 (2) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany. 3. Fact of the case on which the aforementioned complaint case was initiated is not relevant for the purpose of present discussion, save and except, that some of the accused persons as mentioned in the petition of complaint, are residents which falls outside for jurisdiction of the learned Chief Metropolitan Magistrate, Calcutta before whom the complaint was instituted. 4. The learned Chief Metropolitan Magistrate on consideration of evidence recorded under Section 200 of the Code directed issuance of process against all the accused persons as arrayed in the petition of complaint. After directing issuance of process, learned Chief Metropolitan Magistrate transferred the aforementioned case to the file of learned Metropolitan Magistrate, 12th Court for proceeding further with the aforementioned case. 5. In the mean time, three petitioners namely Sushil Kumar Daga (arrayed as accused No. 2 in the petition of complaint), Krishna Damani (arrayed as accused No. 3 in the petition of complaint) and Umesh Verma (arrayed as accused No. 6 in the petition of complaint), moved a revisional application before the learned Chief Judge, City Sessions Court at Calcutta mainly on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 (i) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station, except the power to arrest without warrant. 9. The relevant amendment to Section 202 of the Code was introduced by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) and the following lines were introduced which is set out below: and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction. 10. Learned Advocate General during the course of his argument contended that the word 'shall' as separately, de hors of the entire context and scheme of the other provision of the Code and the interpretation of the amended provision is required to be considered on consideration of the entire scheme. It is further contended by learned Advocate General that while int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... character. At para 16 of the aforementioned decision the Hon'ble Supreme Court held, which is set out below: 16. Much emphasis has been laid by Mr. Gupta that the expression used in the opening words of Section 78(1) is 'shall' and that there is no indication in Sub-clause (1) of Clause (d) enabling a Labour Court to take into account any other extraneous matters. According to the learned Counsel the use of the expression 'shall' coupled with the clear wording of Sub-clause (1) of Clause (d), clearly shows that the provisions are mandatory and not directory. It must be stated that a very superficial reading of Sub-clause (1) of Clause (d) may support the contention of Mr. Gupta. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to be served by the Act in question. 13. In State of U.P. v. Babu Ram Upadhya 1961 (1) Cri LJ 773 (supra), five Judge Bench of Hon'ble Supreme Court while considering the scope of the police regulation, discussed the scope of the word 's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is: On the other hand, where the prescriptions of a statute relate to the performance of public duty and where the Invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. This passage was accepted by the Judicial Committee of the Privy Council in the case of Montreal Street Railway Co. v. Normandin and by this Court in State of U.P. v. Manbodhan Lal Srivastage. 14. In Jaswant Singh Mathura Singh and Anr. v. Ahmedabad Municipal Corporation and Ors. AIR 1991 SC 2130 (supra), three Judge Bench of Hon'ble Supreme Court while Interpreting Bombay Town Planning Rules, 1955 held at para 13 of the aforementioned decision, which is set out below: 13. The use of 'shall' in the given circumstances may be construe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It, no doubt, says that the Court of wards shall appoint...a representative . But it is well-known that the use of the word shall is not conclusive of the question whether a provision is mandatory: see Hari Vishnu Kamath v. Syed Ahmad Ishaque. The intention of the legislature has to be gathered from the whole stature. 18. In Owners and Parties Interested in M.V. Vali Pero v. Fernandeo Lopez and Ors. AIR 1989 SC 2206 (supra), three Judge Bench of Hon'ble Supreme Court while interpreting Calcutta High Court Rules, 1914, particularly in connection with Rule 4 under Chapter XXII of the aforesaid Rules, in which omission took place to record the signature of the witnesses in violation of the Rule 4, held as follows: The consequence of failure to comply with any requirement of Rule 4 ibid is not provided by the stature itself. Accordingly, the consequence has td be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the non-compliance. Rule 4 uses the word 'shall' even while requiting the signature of the witness as it uses the word 'shall' in respect of the other requirements of the rule. Ordinarily, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to be context, subject matter and object of the statute in question. 21. In the State of Punjab and Anr. v. Shamlal Murari and Anr. AIR 1976 SC 1177 (supra), Two Judge Bench of Hon'ble Supreme Court while considering the noncompliance of Rule about the supply of requisite particular number of copies in connection with Punjab and Haryana High Court Rules held at para 8 of the aforesaid decision, which is set out below: 8. It is obvious that even taking a stern view, every minor detail in Rule 3 cannot carry a compulsory or imperative import. After all what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the amended provision of Section 202 was, the subject matter of challenge and the decision was given mainly in context of the subject matter. The entire scope of Section 202 vis-a-vis the amended provision was not taken into consideration by me in the earlier decision. 23. In A.R. Antulay v. Ramdas Sriniwas Nayak and Ors. 1984 Cri LJ 647 (supra), Five Judges Bench of Hon'ble Supreme Court while considering the scope of the provisions of Criminal Law Amendment Act, 1952 and while upholding the decision of High Court that a private complaint in-connection with the offence falling under the amended Act is maintainable, made the following observation which In my view is very relevant for the purpose of present discussion: Punishment of the offender in the Interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint under Section 203. 26. In Bhinka and Ors. v. Charan Singh 1959 Cri LJ 1223 (supra). Three Judges Bench of Hon'ble Supreme Court in connection with interpretation of statute, held at para 15: The headings prefixed to Sections or sets of Sections in some modern statures are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps the Court to resolve that doubt. 27. In Martins v. Fower (supra), the Privy Council while considering the scope of Section 39 of the Marriage Ordinance, 1884 (Laws of Southern Nigeria) held that the construction was supported by a consideration of the headings to the sections, which might be regarded as preambles to the provisions following them. 28. In Corporation of the city of Toronto and Toronto Railway Company (supra), similar view was expressed by the Privy Council. 29. Learned Advocate General also submitted written arguments and the main contention of the learned Advocate General appearing for the petitioners is that the provision of Section 202 is appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the word 'shall' and then to decide that the word by itself indicates the obligation on the part of the Court may defeat the very purpose for which the Clause is introduced. 33. Shri Pradip Ghosh, learned Senior Counsel appearing for the Opposite Parties submitted in support of the order under challenge passed by the learned Chief Judge, City Sessions Court. 34. Learned Senior Counsel for the Opposite Parties also filed written argument and referred to various decisions in support of his contention: 1. State of Uttar Pradesh v. Radhey Shyam Nigam and Ors. reported in (1989) 1 Supreme Court Cases 591 : AIR 1989 SC 682. 2. Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. Reported in (1987) 2 Supreme Court Cases 707 : AIR 1987 SC 1668. 3. D.R. Fraser and Co. Ltd. v. The Minister of National Revenue reported in AIR 1949 Pc 120. 4. Mahalaxmi Rice Mills and Ors. v. State of U.P. and Ors. reported in (1998) 6 Supreme Court Cases 590 : AIR 1999 SC 147. 5. Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam v. Union of India and Ors. reported in (1990) 3 Supreme Court Cases 440 : AIR 1990 SC 1316. 6. Jaywant S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eller to pay the market fee to the committee is shall . Employment of the said two monosyllables of great jurisprudential import in the same Clause dealing with two fights regarding the same burden must have two different imports. The legislative intendment can easily be discerned from the frame of the Sub-clause that what is conferred on the seller is only an option to collect market fee from his purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realised it from the purchaser or not. 39. In Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam v. Union of India and Ors. AIR 1990 SC 1316 (supra). Three Judges Bench of Hon'ble. Supreme Court while interpreting Section 4 of the Inter State Water Disputes Act, 1956 held that it was mandatory and obligatory on the part of the Central Government in view of the word shall in Section 4 to constitute an appropriate tribunal and refer the dispute 1 to it. 40. In Jaywant S. Kulkarni and Ors. v. Minochar Dosabhai Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same Section compel the conclusion that on an application by anybody other than the State Government, the State Industrial Court or a district Industrial Court may also refuse to take action. The suggested construction of the words rendered illegal as held illegal might therefore have the curious result that even though the strike is in fact illegal within the meaning of Section 40 of the Act no action can at any time be taken against an employee for participation in it. We have accordingly come to the conclusion that the words rendered illegal does not mean held illegal and the employer is free to take action against the employee as soon as he thinks that the strike in which he has participated comes within the provisions of Section 40 of the Act. 44. In Parshotam Lal Vadera v. Satyanarayan Sadangi (supra), learned single Judge of the Orissa High Court after considering the scope of amended provision of Section 202 is of the view that the same being mandatory created an obligation on the part of the Magistrate to enquire into the case himself. 45. The learned Senior Counsel appearing for the Opposite Parties in his written arguments also highlighted that in connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the petition of complaint. It is evident from the combined reading of Section 2(d) of the Code read with Section 190(1)(a) of the Code that on receipt of the complaint the Magistrate is required to take cognizance in order to ascertain whether the recital in the petition of complaint discloses commission of offence by persons whether known or unknown. 53. Section 200 to Section 203 falls under Chapter XV which deals with the procedure as to how a complaint presented before the Magistrate and on which cognizance is taking by the Magistrate shall be dealt with by him. 54. Section 200 of the Code prescribed that Magistrate taking cognizance shall examine upon oath the complainant and the witnesses present. Such examination may be dispensed in cases of public servant acting or purporting to act in the discharge of his official duties or in case where the Court has made the complaint. 55. Section 201 of the Code deals with the procedure by Magistrate not competent to take cognizance of the case. There may be cases where the Magistrate finds that he lacks territorial jurisdiction over the place of occurrence or where the learned Magistrate finds that the complaint in its orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are residing outside the jurisdiction of the Court. 61. The question now arises whether the amendment by itself makes it obligatory on the part of the Magistrate to enter into the field of Section 202, even if, he is satisfied after examination of complainant and his witnesses in terms of provision under Section 200 of the Code that a prima facie case is made out against the accused persons. It may be pointed out that subjective satisfaction on the part of the learned Magistrate about prima facie case to call upon the accused persons to face trial. At this stage the Magistrate is not required to examine, whether evidence is sufficient to convict the accused. 62. Careful perusal of the language appearing under Section 202 vis-a-vis Section 203 of the Code makes it abundantly clear that the Magistrate is empowered to dismiss a complaint after considering the statement on oath (if any) of the complainant and the witnesses recorded under Section 200 of the Code. 63. This power of the Magistrate, in any view, is not controlled by the language of Section 202 of the Code as originally framed or even under the amended provision of Section 202. 64. Comparative study of Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n wrong place cannot be a ground to set aside any finding, sentence or order of any Criminal Court save and except in cases where such error has occasioned a failure of justice. 68. So far as the present matter is concerned, the question as to lack of territorial jurisdiction of the learned Magistrate in connection with the offence does not arise. Here again the question is the special protection given to the accused persons residing outside the jurisdiction of the Code consequent to amendment of Section 202. 69. The language of Section 202 as amended cannot be stretched or extended to such a degree which in its turn may defeat the very purpose for which Chapter XV of the Code is incorporated. There is nothing to show in the language of Section 202 of the Code, as originally framed, or even after amendment, that the same overrides the provision of Section 200 of the Code and the Magistrate, in view of amended provision of Section 202, is compelled to postpone issue of process under Section 204 or to dismiss the complaint under Section 203 of the Code. In other words the language of amended provision of Section 202 cannot be read in such a way separating it altogether from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out in this context that Section 202 prescribed procedure. 76. In this connection the observation made by Hon'ble Supreme Court in Sushil Kumar Sen v. State of Bihar reported in AIR 1975 SC 1185 is very relevant. The Hon'ble Supreme Court held, The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.... Justice is the goal of jurisprudence - processual, as such as substantive. 77. Similarly in State of Punjab and Anr. v. Shamlal Murari and Anr. reported in AIR 1976 SC 1177, the Hon'ble Supreme Court held, Processual law is not to be tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prescribed by the legislature. 82. I have already pointed out that the application of Section 202 is discretionary and when the law has not demanded or make it obligatory on the part of the Magistrate to enter into such inquiry as provided under Section 202 then in my view non-compliance of the same cannot and does not call for any interference. If the learned Magistrate has not exercised his discretion or did not think it necessary to enter into further inquiry in terms of Section 202 then there is no language either in Section 200 or Section 202 which compels him to do so. 83. In this connection I must point out Section 461 of the Code stipulates irregularities which vitiate proceedings. The matter falling under the said Section clearly indicates that violation or non-compliance of the same shall make the entire proceeding void. Non-compliance of amended provision of Section 202 or for that matter non-compliance of Section 202 does not find place in Section 161. In other words the non-compliance of amended provision under Section 202 of the Code is not visited with any prescription or consequence, and as such the entire provision of Section 202, even after amendment rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 202 is answered as follows: 1. The application of Section 202 of the Code is discretionary and the same will come into operation only in cases where the Magistrate in his discretion decides to postpone the issue of process. 2. In cases where the learned Magistrate postpones the issue of process then it is mandatory on his part to inquire in case of accused persons who are residing outside the jurisdiction of the Court. 89. The revisional application is disposed of accordingly. In the result the judgment and order dated 13-11-2006 passed by learned Chief Judge, City Sessions Court in Criminal Revision No. 146 of 2006 is hereby set aside and quashed. 90. The original order directing issuance of process passed by the learned Metropolitan Magistrate in connection with Complaint Case No. 6333 of 2006, dated 4-7-2006 is hereby restored. 91. Learned Court below is directed to proceed with the case as expeditiously as possible. 92. Criminal Section is directed to forward a copy of the order to learned Court below. 93. Criminal Section is further directed to supply urgent Photostat Copy of the order to the parties as and when applied for. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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