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TMI Blog2020 (2) TMI 1740X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Hon'ble Supreme Court in the case of Abhjit Pawar [2016 (12) TMI 1774 - SUPREME COURT] 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. 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. Conclusion - The compliance with Section 202 of the Cr.P.C. is mandatory when the accused resides outside the jurisdiction of the Magistrate. The purpose of this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Hemant Madhukar Nimbalkar and Anr.). (ii). Crl. Ptn. No. 359 of 2017 (Shri Bijay Kr. Jalan & Ors. v. The State of Assam & Anr.) (iii). Crl. Pet. No. 971 of 2018 (Shri Kuljit Singh Sethi v. The State of Assam and 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/res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. For proper adjudication of the issue in dispute, the relevant provisions of law i.e. Sections 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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