Compliance with Section 202 of CrPC not mandatory in Cheque Bouncing cases: Calcutta HC

A Division Bench of the Calcutta High Court has ruled that the provision for mandatory preliminary enquiry prior to trial, as provided under Section 202 of the Code of Criminal Procedure (CrPC), is not applicable when it comes to cases involving the dishonour of cheques penalised under the Negotiable Instruments Act, 1881 (NI Act)..Justices Debasish Kar Gupta and Shekhar B Saraf passed the verdict following a reference made by single judge, Justice Tarun Kumar Gupta to resolve differences of opinion in this area..The cases was brought to quash criminal proceedings under Section 482 of the CrPC. The offences charged against the accused included cheating under the Indian Penal Code as well as offences under the NI Act..Section 202 empowers the magistrate to postpone the process of trial in order to conduct a preliminary enquiry for discerning whether an offence is made out. The provision aims to guard against false complaints. This enquiry can be conducted either by the magistrate himself, or by an investigating officer tasked by the magistrate..In 2005, this provision was amended to state that the magistrate “shall” conduct such an enquiry where the accused resides beyond the territorial jurisdiction of the trial magistrate..In this case, the magistrate had proceeded with the trial process under Section 204 without having conducted any such enquiry, even though the accused were residing beyond the territorial jurisdiction of the magistrate. Arguing that a Section 202 enquiry was mandatory in such cases, the accused in turn challenged the process initiated against them without such inquiry..Given these facts, the Court was called upon to answer five questions regarding the applicability of Section 202, specifically with respect to cases where the accused resides beyond the territorial jurisdiction of the magistrate..Of these, one of the questions presented was whether the amended Section 202, CrPC would apply to cases involving offences punishable under Section 138/141 of the Negotiable Instruments Act, 1881..In other words, the Court was called to decide whether a preliminary enquiry under Section 202 of CrPC was mandatory before moving forward with criminal proceedings in cheque bouncing cases..The Court answered this question in the negative, on examining the provisions of the NI Act as well as numerous precedents..It was observed that the scheme of prosecution under the NI Act was different from the scheme under the CrPC. This was particularly emphasised in the case of N Harihara Krishnan v J Thomas..Moreover, the provisions of the NI Act were constructed to exclude the provisions of the CrPC. This was evident from the non-obstante clauses in the provisions of the NI Act..Further, it was noted that the NI Act already contains provisions intended to carry out the object underlying the insertion of the amended Section 202, CrPC i.e. to ward off false complaints and prevent undue harassment of innocent persons. The Court observed,.“In view of the above and taking into consideration the non-obstante clauses used in Sections 142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage.”.Therefore, the Court held,.“…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.”.The other four questions pertained to general application of Section 202 in prosecuting offences under the CrPC, and they were answered as follows..On whether a preliminary enquiry under the amended Section 202 of CrPC is mandatory .The Court found that such enquiry is mandatory before taking the trial forward, if the accused resides beyond the territorial jurisdiction of the magistrate..Placing reliance on several precedents including National Bank of Oman v Barakara Abdul Aziz, Udai Shankar Awasthi v State of UP and Vijay Dhanuka v Najima Mamtaj, the Court found that it is already settled that such enquiry is mandatory in such cases..It was observed that the legislative intent to make it mandatory can be gauged from the use of the expression “shall” in the provision..On the nature of inquiry under Section 202, CrPC.The nature of the enquiry is tied to the object underlying the need for such enquiry i.e. to ward off false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment..The Court has indicated that the scope of the enquiry would also be confined to discerning whether the offence is genuine so as to warrant investigation by a criminal court..On whether non-compliance of such inquiry under Section 202 vitiates the order of process issued.If further process is initiated without conducting a Section 202 inquiry, the entire case is not liable to be quashed as such..However, precedent dictates that the matter should be remitted back to the concerned magistrate, so that he can issue fresh orders to comply with the mandate under Section 202. Reliance in this regard was place on the National Bank of Oman case..Whether an objection that Section 202 has not been complied with can be raised only at the initial stage of the proceedings or after much deliberation as well?.The objection has to presented at the earliest stage, keeping in mind the object underlined in Section 465, CrPC. Section 465 lays down that if on any technical ground any party to the criminal proceedings is aggrieved, he must raise the objection thereof at the earliest stage. The Court therefore held,.“…in the event of failure on the part of an aggrieved party to raise objection at the earliest stage, he cannot be heard on that aspect after the whole trial is over or even at a later stage after his participation in the trial.”.The first occasion to raise this objection arrives after the Section 204 of the CrPC is invoked. Section 482 of the CrPC can be invoked as the remedy in such cases..The Court was assisted in the case by Additional Solicitor General Kaushik Chanda and Advocates Ayan Bhattacharya and Tithankar Ghosh..Read Judgment below: