Enquiry by Magistrate under Section 202 CrPC and Issuance of Process: What Supreme Court held

It is obligatory upon the Magistrate under Section 202 of Code of Criminal Procedure that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused..The purpose of the enquiry under Section 202 CrPC is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused, a Supreme Court Bench of Justices R Banumathi and R Subhash Reddy reaffirmed..The Court was hearing an appeal against a judgment of the Calcutta High Court in relation to the alleged theft of certain documents..The appellant complainant, Birla Corporation had alleged theft of fifty-four documents belonging to the appellant company by the respondents. A criminal complaint was filed by the appellant company alleging the commission of offences punishable under Sections 379, 403 IPC read with Section 120-B IPC..Since some of the accused persons were residents beyond local jurisdiction of the court, the trial court/the Magistrate fixed the matter for enquiry under Section 202 CrPC. An employee of the appellant Company by name PB Dinesh was examined..Considering the averments in the complaint and the statement of the complainant and PB Dinesh, the Magistrate found that there are sufficient grounds for proceeding against all the sixteen respondents and ordered issuance of summons to the respondents.The respondents challenged the same before the High Court under Section 482 of CrPC. The High Court did not find any irregularity by the Magistrate with respect to the procedural aspect under Section 202 though it partly set aside the order of Magistrate on other grounds..In the appeal before the Supreme Court, the Court dealt with the scope of enquiry contemplated under Section 202 CrPC and issuance of process..Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused, the Court held..Under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused..Only on such satisfaction, the Magistrate may direct issuance of process as contemplated under Section 204 CrPC, the Supreme Court made it clear..The purpose of the enquiry under Section 202 CrPC is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused..However, the Court said that the scope of enquiry under this section is extremely restricted only to finding out the truth of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed..At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused..The Court also took note of the amendment made in 2005 to Section 202 of CrPC and the legislative intent behind the same..By CrPC (Amendment) Act, 2005, in Section 202 CrPC of the Principal Act with effect from June 23, 2006, in sub-section (1), the words “…and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction…” were inserted..In the opinion of the legislature, such amendment was necessary as false complaints were being filed against persons residing at far off places in order to harass them. The Court said that the object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire..Since the amendment is aimed to prevent persons residing outside the jurisdiction of the court from being harassed, it was reiterated that holding of enquiry by Magistrate is mandatory. In this regard, the Court placed reliance on its own judgments in Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528 and National Bank of Oman v. Barakara Abdul Aziz and Another (2013) 2 SCC 488..Further, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable. In this regard, reliance was placed on Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749]..The Court, however, clarified that at the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused..While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. As held in another case of Mehmood Ul Rehman, since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process..In the instant case, the Court observed that for taking cognizance of the offence, the Magistrate inter alia relied upon the statement of the complainant and PB Dinesh to arrive at a conclusion that a prima facie case is made out against the respondents..However, it was the opinion of the Supreme Court that neither the statement of the complainant nor the statement of PB Dinesh contained particulars as to the commission of the offence, so as to satisfy the Magistrate that there were sufficient grounds for proceeding against the accused..“By perusal of the above order passed by the Magistrate, we find absolutely nothing to indicate the application of mind in taking cognizance of the offence against respondents No.1 to 16 including the respondents who are residents beyond the jurisdiction of the court. Though speaking or elaborate reasoned orders are not required at this stage, there must be sufficient indication that there was application of mind by the Magistrate to the facts constituting the commission of offence”, the Court held..There were no averments in the complaint nor allegations in the statement of the complainant or witness PB Dinesh as to when and how the theft was committed, the Court further said. The complaint lacked particulars as to time and the place of theft or the person who has committed theft. There were no averments in the complaint alleging how the documents had gone out of the possession of the complainant..In the absence of particulars, by mere possession of the documents or mere production of the documents in the Company Petition or civil suits, it cannot be said that sufficient grounds were made out to proceed against the accused or that the satisfaction of the Magistrate was well founded justifying issuance of process..Hence, the Court ruled that the order of the Magistrate summoning the accused cannot be sustained. Thus, the High Court order holding that there was compliance of the procedure under Section 202 CrPC was set aside..[Read Judgment].Bar & Bench is available on WhatsApp. For real-time updates on stories, click here to subscribe to our WhatsApp.