Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.678-681 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) NOS.5090-5093 of 2013)

VIJAY DHANUKA ETC. …APPELLANTS

VERSUS

NAJIMA MAMTAJ ETC. …RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD,J.

Petitioners have been summoned in a complaint

case for commission of offence under Section 323,

380 and 506 read with Section 34 of the Indian

Penal Code, hereinafter referred to as “the IPC”.

Respondent No. 1 filed a complaint in the Court of

Additional Chief Judicial Magistrate at Jangipur,

Murshidabad on 1

st

of October, 2011, who after

taking cognizance of the same, transferred the

Page 2 complaint to the Court of Judicial Magistrate,

Jangipur, Murshidabad for inquiry and disposal.

According to the allegation in the complaint

petition, accused no.1 Rajdip Dey is sub-broker of

Karvy Stock Broking Limited; whereas other accused

persons are its officials posted at Kolkata and

Hyderabad. The complainant alleged to be its

investor and claimed to have purchased shares from

Karvi Stock Broking Ltd. through the sub-broker,

accused No. 1. According to the complaint, a

dispute arose over trading of shares between the

complainant and the accused persons and to settle

the on-going dispute, the accused persons offered

a proposal to the complainant who consented to it

and accordingly, on 11

th

of September, 2011,

accused persons visited at her residence at

Raghunathganj Darbeshpara to have a discussion

with the complainant and her husband. According to

the allegation, the discussion did not yield any

result and the accused persons started shouting at

them. Some of the accused persons, according to

2

Page 3 the allegation, took out a pistol from their bag

and put the same over the heads of the complainant

and her husband. It is alleged that they assaulted

the complainant and her husband with fists and

slaps and also abused them and coerced the

complainant to sign some papers and snatched away

the suitcase containing some papers. The aforesaid

complaint was filed on 1

st

of October, 2011 in the

Court of Additional Chief Judicial Magistrate,

Jangipur, Murshidabad. The learned Magistrate

took cognizance of the offence and transferred the

case to the Court of another Magistrate for

inquiry and disposal. On receipt of the record,

the transferee Magistrate adjourned the case to

31

st

of October, 2011. On the said date, the

complainant and her witnesses were present. The

complainant was examined on solemn affirmation and

the two witnesses namely Enamul Haque and Masud

Ali were also examined. Order dated 31

st

of

October, 2011 shows that they were examined under

Section 200 of the Code of Criminal Procedure,

1973 (hereinafter referred to as the “Code”). The

transferee Magistrate, thereafter, adjourned the

3

Page 4 case for orders and on the adjourned date, i.e.

15

th

of November, 2011, he directed for issuance of

summons against the accused persons for offence

under Section 323, 380 and 506 read with Section

34 of the IPC. It is relevant here to state that

in the complaint, the residence of the accused has

been shown at a place beyond the territorial

jurisdiction of the Magistrate.

Petitioners challenged the order issuing

process in four separate applications filed under

Section 482 of the Code before the High Court,

inter alia, contending that the accused persons

being residents of an area outside the territorial

jurisdiction of the learned Magistrate who had

issued summons, an inquiry within the meaning of

Section 202 of the Code was necessary. It was

also contended that only after inquiry under

Section 202 of the Code, the learned Magistrate

was required to come to the conclusion as to

whether sufficient grounds exist for proceeding

against the accused persons. Said submission did

not find favour with the High Court and by common

4

Page 5 order dated 19

th

of February, 2013, it rejected all

the applications. It is against this common order

that the petitioners have filed these special

leave petitions.

Leave granted.

Mr. Jaideep Gupta, learned Senior Counsel

appearing on behalf of the appellants submits that

the accused persons admittedly were residing at a

place beyond the area in which the learned

Magistrate exercised his jurisdiction, hence, an

inquiry under Section 202 of the Code was sine qua

non. He submits that in the present case, the

learned Magistrate has not held inquiry as

envisaged under Section 202 of the Code.

Ms. Nidhi, learned counsel representing

respondent no.1, however, submits that, in fact,

the learned Magistrate before issuing the process

has held an inquiry contemplated under the law and

the order issuing process cannot be faulted on the

ground that no inquiry was held. In view of the

5

Page 6 rival submissions, we deem it expedient to examine

the scheme of the Code.

In the present case, we are concerned with an

order passed in a complaint case. Section 190 of

the Code provides for cognizance of offences by

Magistrates and the same reads as follows:

“190. Cognizance of offences by

Magistrates.-(1) Subject to the

provisions of this Chapter, any

Magistrate of the first class, and

any Magistrate of the second class

specially empowered in this behalf

under sub-section(2), may take

cognizance of any offence-

(a)upon receiving a complaint

of facts which constitute such

offence;

(b)upon a police report of such

facts;

(c)upon information received

from any person other than a

police officer, or upon his own

knowledge, that such offence

has been committed.

(2) The Chief Judicial Magistrate

may empower any Magistrate of the

second class to take cognizance

under sub-section(1) of such

offences as are within his

competence to inquire into or try.”

6

Page 7 Section 190 of the Code finds place in Chapter

XIV and from its plain reading, it is evident that

the competent Magistrate, inter alia, may take

cognizance of any offence, subject to the

provisions of Chapter XIV, upon receiving a

complaint of facts which constitute an offence.

Section 192 of the Code empowers any Chief

Judicial Magistrate to transfer the case for

inquiry after taking cognizance to a competent

Magistrate subordinate to him. In the present

case, on receipt of the complaint, the learned

Additional Chief Judicial Magistrate in exercise

of the power under Section 192 of the Code, after

taking cognizance of the offence, had made over

the case for inquiry and disposal to the

transferee Magistrate. Section 12(2) of the Code

confers on Additional Chief Judicial Magistrate

the same powers as that of a Chief Judicial

Magistrate. Hence, transfer of the case by the

Additional Chief Judicial Magistrate after taking

cognizance of the case to transferee Magistrate

for inquiry and disposal is perfectly in tune with

the provisions of the Code. The transferee

7

Page 8 Magistrate, thereafter, examined the complainant

and her witnesses and only thereafter issued the

process.

Section 200 of the Code, inter alia, provides

for examination of the complainant on oath and the

witnesses present, if any. Same reads as follows:

“200. Examination of complainant . –

A Magistrate taking cognizance of

an offence on complaint shall

examine upon oath the complainant

and the witnesses present, if any,

and the substance of such

examination shall be reduced to

writing and shall be signed by the

complainant and the witnesses, and

also by the Magistrate:

Provided that, when the complaint

is made in writing, the Magistrate

need not examine the complainant

and the witnesses-

(a) If a public servant acting or

purporting to act in the discharge

of his official duties or a court

has made the complaint; or

(b) If the Magistrate makes over

the case for inquiry, or trial to

another Magistrate under section

192:

Provided further that if the

Magistrate makes over the case to

another Magistrate under section

192 after examining the complainant

and the witnesses, the latter

8

Page 9 Magistrate need not re-examine

them.”

Under Section 200 of the Code, on presentation

of the complaint by an individual, other than

public servant in certain contingency, the

Magistrate is required to examine the complainant

on solemn affirmation 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, if any, various options are

available to him. If he is satisfied that the

allegations made in the complaint and statements

of the complainant on oath and the witnesses

constitute an offence, he may direct for issuance

of process as contemplated under Section 204 of

the Code. In case, the Magistrate is of the

opinion that there is no sufficient ground for

proceeding, the option available to him is to

dismiss the complaint under Section 203 of the

Code. If on examination of the allegations made

in the complaint and the statement of the

9

Page 10 complainant on solemn affirmation and the

witnesses examined, the Magistrate is of the

opinion that there is no sufficient ground for

proceeding, the option available to him is to

postpone the issue of process and either inquire

the case himself or direct the investigation to be

made by a police officer or by any other person as

he thinks fit. This option is also available after

the examination of the complainant only. However,

in a case in which the accused is residing at a

place beyond the area in which the Magistrate

exercises his jurisdiction whether it would be

mandatory to hold inquiry or the investigation as

he thinks fit for the purpose of deciding whether

or not there is sufficient ground for proceeding,

is the question which needs our determination. In

this connection, it is apt to refer to Section 202

of the Code which provides for postponement of

issue of process. The same reads as follows:

“202. Postponement of issue of

process.-(1) Any Magistrate, on

receipt of a complaint of an

offence of which he is authorised

to take cognizance or which has

been made over to him under section

1

Page 11 192, may, if he thinks fit, and

shall, in a case where the accused

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:

Provided that no such direction

for investigation shall be made-

(a)where it appears to the

Magistrate that the offence

complained of is triable

exclusively by the Court of

Sessions; or

(b)where the complaint has not

been made by a Court, unless

the complainant and the

witnesses present, if any, have

been examined on oath under

Section 200.

(2) In an inquiry under sub-

section(1), the Magistrate may, if

he thinks fit, take evidence of

witness on oath:

Provided that if it appears to

the Magistrate that the offence

complained of is triable

exclusively by the court of

Session, he shall call upon the

complainant to produce all his

witnesses and examine them on oath.

(3)If an investigation under sub-

section(1) is made by a person not

1

Page 12 being a police officer, he shall

have for that investigation all the

powers conferred by this Code on an

officer in charge of a police

station except the power to arrest

without warrant.”

(underlining ours)

Section 202 of the Code, inter alia,

contemplates postponement of the issue of the

process “in a case where the accused is residing

at a place beyond the area in which he exercises

his jurisdiction” and thereafter to either inquire

into the case by himself or direct an

investigation to be made by a police officer or by

such other person as he thinks fit. In the face

of it, what needs our determination is as to

whether in a case where the accused is residing at

a place beyond the area in which the Magistrate

exercises his jurisdiction, inquiry is mandatory

or not. The words “and shall, in a case where the

accused is residing at a place 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.

23

rd

of June, 2006. The aforesaid amendment, in the

1

Page 13 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 the context or the

intention, it can be held to be directory. The

use of the word “shall” in all circumstances is

not decisive. Bearing in mind the aforesaid

1

Page 14 principle, when we look to the intention of the

legislature, we find that it is aimed to prevent

innocent persons from harassment by unscrupulous

persons from false complaints. Hence, in our

opinion, the use of the expression “shall” and the

background and the purpose for which the amendment

has been brought, we have no doubt in our mind

that inquiry or the investigation, as the case may

be, is mandatory before summons are issued against

the accused living beyond the territorial

jurisdiction of the Magistrate. In view of the

decision of this Court in the case of Udai

Shankar Awasthi v. State of Uttar Pradesh,(2013) 2

SCC 435, this point need not detain us any further

as in the said case, this Court has clearly held

that the provision aforesaid is mandatory. It is

apt to reproduce the following passage from the

said judgment:

“40. The Magistrate had issued

summons without meeting the

mandatory requirement of Section

202 CrPC, though the appellants

were outside his territorial

jurisdiction. The provisions of

Section 202 CrPC were amended vide

the Amendment Act, 2005, making it

1

Page 15 mandatory to postpone the issue of

process where the accused resides

in an area beyond the territorial

jurisdiction of the Magistrate

concerned. The same was found

necessary in order to protect

innocent persons from being

harassed by unscrupulous persons

and making it obligatory upon the

Magistrate to enquire into the case

himself, or to direct investigation

to be made by a police officer, or

by such other person as he thinks

fit for the purpose of finding out

whether or not, there was

sufficient ground for proceeding

against the accused before issuing

summons in such cases.”

(underlining ours)

In view of our answer to the aforesaid

question, the next question which falls for our

determination is whether the learned Magistrate

before issuing summons has held the inquiry as

mandated under Section 202 of the Code. The word

“inquiry” has been defined under Section 2(g) of

the Code, the same reads as follows:

“2. xxx xxx xxx

(g)”inquiry” means every inquiry,

other than a trial, conducted under

this Code by a Magistrate or Court;

xxx xxx xxx”

1

Page 16 It is evident from the aforesaid provision,

every inquiry other than a trial conducted by the

Magistrate or Court is an inquiry. No specific

mode or manner of inquiry is provided under

Section 202 of the Code. In the inquiry envisaged

under Section 202 of the Code, the witnesses are

examined whereas under Section 200 of the Code,

examination of the complainant only is necessary

with the option of examining the witnesses

present, if any. This exercise by the Magistrate,

for the purpose of deciding whether or not there

is sufficient ground for proceeding against the

accused, is nothing but an inquiry envisaged under

Section 202 of the Code. In the present case, as

we have stated earlier, the Magistrate has

examined the complainant on solemn affirmation and

the two witnesses and only thereafter he had

directed for issuance of process.

In view of what we have observed above, we do

not find any error in the order impugned.

1

Page 17 In the result, we do not find any merit in

the appeals and the same are dismissed

accordingly.

……………………………………………………………… J

(CHANDRAMAULI KR. PRASAD)

……………………………………………………………… J

(PINAKI CHANDRA GHOSE)

NEW DELHI,

MARCH 27, 2014.

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