Magistrate/ Police Officer cannot issue notice to accused during enquiry under S. 202 of CrPC, Calcutta HC

The Calcutta High Court has held that a Magistrate or a police officer is not entitled to issue notice upon the accused to appear and participate in the proceeding in the course of enquiry under Section 202 of Code of Criminal Procedure..The judgment was rendered by Justice Joymalya Bagchi in a petition filed by one Ramesh Sobti. Advocates Ayan Bhattacharyya and Sayak Ganguly appeared for the petitioner while Sandipan Ganguly, Arkadeb Bhattacharyya and Abhishek Bhattacharjee appeared for the respondents..The case pertained to a notice issued by Officer-in-Charge, Shakespeare Sarani Police Station under Section 41A of the Code of Criminal Procedure upon the petitioner in the course of investigation under Section 202 of CrPC. This was challenged by the petitioner..The issue which, therefore, fell for Court’s consideration was whether a notice to a proposed accused in the course of investigation/enquiry by a police officer under Section 202 Cr.P.C. is valid or not..The Court held that the enquiry under Section 202 is not a full-fledged investigation but is only limited to verifying the prima facie truthfulness in the allegations..“Such enquiry is not similar to a full-fledged investigation under Chapter XII of the Code, but is limited only to verify the prima facie truthfulness in the allegations in the petition of complaint on the basis of the complaint and the witnesses produced by the complainant in support of his allegations. .The police officer investigating under Section 202 Cr.P.C. under orders of the Magistrate is, therefore, required to look into the prima facie veracity of the allegations in the complaint and submit a report before the learned Magistrate as to whether there is sufficient ground to proceed against the accused or not.”.The Court, therefore, held that in an enquiry under Section 202, an accused cannot be called upon to participate in such enquiry or pose any question to him or his witnesses..“It is only upon conclusion of such enquiry if the Magistrate is satisfied on the basis of materials on record that there is sufficient ground to proceed against the accused he shall issue process for his appearance in the case. He cannot permit the accused to participate and canvass his defence in the course of the pre-summoning enquiry and convert it to a ‘mini trial’ even before the commencement of the trial itself.”.Since, the police officer conducting investigation under Section 202 Cr.P.C. is a delegatee of the Magistrate, the Court held that he cannot issue such notice..“Police officer conducting investigation under Section 202 Cr.P.C. is a delegatee of the Magistrate and his powers of investigation are, therefore, circumscribed by the limitations imposed upon the principal, that is, the Magistrate himself. Since the Magistrate in the course of enquiry under Section 202 Cr.P.C. is not entitled to issue notice upon the accused to appear and participate in the proceeding, the police officer as his delegatee cannot claim higher powers and issue notice upon the accused and interrogate him in the course of investigation under Section 202 Cr.P.C…….he cannot in course of such investigation issue notice to the accused and interrogate him to elicit his responses to the allegations in the complaint. If he does so, he would be enlarging the scope of enquiry under Section 202 Cr.P.C. wherein an accused is precluded from participating and raising his defences in rebuttal to the allegations in the petition of complaint.”.The Court, therefore, ruled in favour of the petitioner..Read the judgment below.