Calcutta HC: Process u/Section 202 of CrPC not Mandatory for Cheque Dishonor Cases

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May 04, 2018

Case name: S.S. Binu v. State of West Bengal with others

Date of Judgment: May 03, 2018

Brief Facts of the case: The Two-Judge Bench of Calcutta High Court recently took up a batch of petitions to decide issues pertaining to the amendment of Section 202 of Code of Criminal Procedure  as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 (25 of 2005).

One of the seminal issues that fell for consideration before the Division Bench of the High Court was whether the amendment of Section 202 of Code of Criminal Procedure as enacted vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will apply in case of offences punishable under Section 138/141 of the Negotiable Instruments Act, 1881?

The Petitioners common allegation in the case was that the petitioners have been residing at a place beyond the territorial jurisdiction of the concerned Magistrate Court, but process were issued against them under Section 204 CrPC without making necessary mandatory inquiry as contemplated under sub-section (1) of the Section 202 of Code of Criminal Procedure .

Section 202 of Code of Criminal Procedure  provides for the postponement of issue of process. It statesthat any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, 1[and shall, in a case where the accused or is residing at a place beyond the area in which he exercises his jurisdiction]. postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding..

Bench’s Verdict:

The Division Bench of the Calcutta High Court while delivering its verdict in the case made reference to plethora of judgments to hold the following:

• That according to the settled principles of law, the amendment of Section 202 of Code of Criminal Procedure ,is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression “shall”, looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
• Salient features of Section 138 to 147 of NI Act

That applying the doctrine of pith and substance to the provisions of Section 138 to Section 147 of the said Act, 1881, keeping in mind the interpretations of the aforesaid Sections by the Supreme Court , these are the following salient features in the above provisions:

• The complaint is filed under Section 138 of the said Act, 1881 furnishing best possible evidence.
• Unimpeachable documents are produced at the initial stage and are marked exhibits.
• Cause of issuance of cheque is backed by presumption under Section 139 of the said Act, 1881.
• On production of original evidence at initial stage, scope of subsequent improvement is minimized at the instance of the complaint.
• Since the best set of evidence is available before the learned Magistrate, he is not making initial enquiry or in other words it is not a roving enquiry into the pros and cons of the matter.
• An exhaustive process has already been prescribed for filing a complaint under Section 138 of the said Act, 1881 furnishing adequate information to form a prima facie opinion by the learned Magistrate at the pre-summoning stage.
• For the above purpose the investigation by police is kept outside the area and summons trial is introduced.

In view of the above, we find that in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.