VIJAY DHANUKA ETC.versusNAJIMA MAMTAJ ETC.

                     [2014) 4 S.C.R. 171                     171


                    VIJAY DHANUKA ETC.                              A
                                v.
                   NAJIMA MAMTAJ ETC.
           (Criminal Appeal Nos. 678-681 of 2014)
                       MARCH 27, 2014
                                                                    B
           [CHANDRAMAULI KR. PRASAD AND
             PINAKI CHANDRA GHOSE, JJ.]

      CODE OF CRIMINAL PROCEDURE, 1973:
                                                                    c
     s.202 rlw.s.2(g) and s. 200 - "Inquiry" in a case where
accused is residing outside territorial jurisdiction of Judicial
Magistrate - Nature and purpose of -Held: In such a case,
before issuing summons to accused, inquiry uls 202 is
mandatory - In the instant case, Magistrate examined                0
complainant on solemn affirmation and two witnesses and
only thereafter directed issuance of process -This exercise by
Magistrate for purpose of deciding whether or not there is
sufficient ground for proceeding against accused is an inquiry
u/s 202 - There is no error in impugned order of High Court         E
rejecting the petitions of accused challenging the order of
Judicial Magistrate directing issuance of process.

      WORDS AND PHRASES:

      Word 'shall' as occurring in s. 202 Cr. P. C. - Connotation   F
of.
     In a complaint filed regarding commission of
offences punishable u/ss. 323,380 and 506 read with s.34
IPC, the Additional Chief Judicial Magistrate, after taking
cognizance, transferred the complaint to the Court of               G
Judicial Magistrate, who examined the complainant and
her two witnesses u/s 200 Cr.P.C. On a subsequent date,
the Judicial Magistrate ordered issuance of summons
                              171                                   H
    172      SUPREME COURT REPORTS             [2014) 4 S.C.R.


A against the appellants for the offences stated In the
  complaint. The appellants challenged the order before the
  High Court u/s 482 Cr.P.C. contending that the accused
  persons being residents of an area beyond the territorial
  jurisdiction of the Judicial Magistrate, an inquiry within the
B meaning of u/s 202 Cr.P.C. was necessary. The High
  Court rejected the petitions.

          Dismissing the appeals, the Court
       HELD: 1.1 In the instant case, on receipt of the
C complaint, the Additional Chief judicial Magistrate in
  exercise of the power u/s 192 of the Code of Criminal
  Procedure, 1973, after taking cognizance of the offence,
  made over the case for inquiry and disposal to the
  transferee Magistrate. Therefore, transfer of the case to
D transferee Magistrate for inquiry and disposal is perfectly
  in tune with the provisions of the Code. [para 8] [177-A-C]
         1.2 Section 202, Cr.P.C, inter alia, contemplates
    postponement of the issue of the process by the
    Magistrate "in a case where the accused is residing at a
E   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. The
    words "and shall, in a case where the accused is residing
F   at a place beyond the area in which he exercises his
    jurisdiction" was inserted by s.19 of Code of Criminal
    Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f.
    23-6-2006. The intention of the legislature is aimed to
    prevent innocent persons from harassment by
G   unscrupulous persons from false complaints. Therefore,
    the use of the expression "shall" and the background
    and the purpose for which the amendment has been
    brought, the inquiry or the investigation, as the case may
    be, is mandatory before summons are issued against the
H   accused living beyond the territorial jurisdiction of the
  VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC.              173

Magistrate. [para 11 -12) [179-H; 180-A-C, H; 181-A~B]        A
    Udai Shankar Awasthi v. State of Uttar Pradesh 2013 (3)
SCR 935 = (2013) 2 sec 435 - relied on.
    1.3 The word "inquiry" has been defined u/s 2(g},
Cr.P.C. It is evident from the provision, that every inquiry 8
other than a trial conducted by the Magistrate or court is
an inquiry. No specific mode or manner of inquiry is
provided u/s 202 of the Code. In the inquiry envisaged u/
s 202, Cr.P.C. the witnesses are examined; whereas u/s
200, Cr.P.C. examination of the complainant only is C
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 u/s 202. (para 13-14] (181-H; 182- D
B·D]
                    Case Law Reference:
    2013 (3) SCR 935         relied on             para 12
                                                              E
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 678-681 of 201'4.

    From the Judgment and Order dated 19.02.2013 of the
High Court of Calcutta in CRR No. 508, 509, 510 and 511 of
2013.                                                         F

   Jaideep Gupta, Rakesh Sinha, S. Sengupta, Brajesh
Kumar for the Appellants.
    Nidhi for the Respondents.                                G
    The Judgrtlent of the Court was delivered by
    CHANDRAMAULI KR. PRASAD, J. 1. Petitioners have
been summoned in a complaint case for commission of offence
under Section 323, 380 and 506 read with Section 34 of the    H
    174       SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A 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 1st of
  October, 2011, who after taking cognizance of the same,
  transferred the complaint to the Court of Judicial Magistrate,
B Jangipur, Murshidabad for inquiry and disposal.

         2. 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
C   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
D   proposal to the complainant who consented to it and
    accordingly, on 11th of September, 2011, accused persons
    vi~ited 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
E   accused persons started shouting at them. Some of the
    accused persons, according to 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
F   abused them and coerced the complainant to sign some
    papers and snatched away the suitcase containing some
    papers. The aforesaid complaint was filed on 1st of October,
    2011 in the Court of Additional Chief Judicial Magistrate,
    Jangipur, Murshidabad. The learned Magistrate took
G   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 31st
    of October, 2011. On the said date, the complainant and her
    witnesses were present. The complainant was examined on
H   solemn affirmation and the two witnesses namely Enamul
   VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC.                   175
         [CHANDRAMAULI KR. PRASAD, J.]
Haque and Masud Ali were also examined. Order dated 31st             A
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 case for orders and on the
adjourned date, i.e. 15th of November, 2011, he directed for         B
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.                      c
      3. 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,       D
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          E
did not find favour with the High Court and by common order
dated 19th of February, 2013, it rejected all the applications. It
is against this common order that the petitioners have filed
these special leave petitions .
 •
                                                                     F
    4. Leave granted.

     5. 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         G
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.

    6. Ms. Nidhi, learned counsel representing respondent            H
    176       SUPREME COURT REPORTS                [2014] 4 S.C.R.


A 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 rival
  submissions, we deem it expedient to examine the scheme of
B the Code.

         7. 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:
c
          "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),
D         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;
E
                 (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 aQy
F
          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."

      8. Section 190 of the Code finds place in Chapter XIV and
G from its plain reading, it is evident that the competent
  Magistrate, inter alia, may take cognizance of a~y 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
H the case for inquiry after taking cognizance to a competent
   VIJAY OHANUKA ETC. v. NAJIMA MAMTAJ ETC.                    177
         ~HANDRAMAULI KR. PRASAD, J.]

Magistrate subordinate to him. In the present case, on receipt        A
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        B
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 Magistrate,      c
thereafter, examined the complainant and her witnesses and
only thereafter issued the process.

    9. 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:                               D

    "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            E
    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         F
    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                                                     G

    (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
                                                                      H
    178       SUPREME COURT REPORTS                  [2014) 4 S.C.R.


A         to another Magistrate under section 192 after examining
          the complainant and the witnesses, the latter Magistrate
          need not re-examine them."

         10. Under Section 200 of the Code, on presentation of the
8 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
C 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
D 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 complainant on solemn affirmation and the witnesses
   examined, the Magistrate is of the opinion that there is no
E 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.
F 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
G 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
H
VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC.                 179
      [CHANDRAMAULI KR. PRASAD, J.]
 which he is authorised to take cognizance or which has         A
 been made over to him under section 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    B
 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     C
 made-

        (a) where it appears to the Magistrate that the
        offence complained of is triable exclusively by the
        Court of Sessions; or
                                                                D
        (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,   E
 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     F
 his witnesses and examine them on oath.

 (3) If an investigation under sub-section(1) is made by a
 person not being a police officer, he shall have for that
 investigation all the powers conferred by this Code on an      G
 officer in charge of a police station except the power to
 arrest without warrant."

                                          (underlining ours)

 11. Section 202 of the Code, inter alia, contemplates          H
    180       SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A 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
B 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
c exercises his jurisdiction" was inserted by Section 19 of Code
  of Criminal Procedure (Amendment) Act (Central Act 25 of
  2005) w.e.f. 23rd of June, 2006. The aforesaid amendment, in
  the 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:
0
          "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
E         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
F         there was sufficient ground for proceeding against the
          accused."

        12. The use of the expression 'shall' prima facie makes
  the inquiry or the investigation, as the case may be, by the
G 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
  principle, when we look to the intention of the legislature, we
  find that it is aimed to prevent innocent persons from
H
   VIJAY DHANUKA ETC. v. NAJIMA MAMTAJ ETC.                   181
         [CHANDRAMAULI KR. PRASAD, J.]
harassment by unscrupulous persons from false complaints.             A
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              B
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     c
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 D
    Amendment Act. 2005. making it 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 E
    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 F
    against the accused before issuing summons in such
    cases."

                                               (underlining ours)

    13. In view of our answer to the aforesaid question, the next     G
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:                                                     H
     182          SUPREME COURT REPORTS             [2014] 4 S.C.R.


'A          "2.   )()()(               )()()(            )()()(


            (g)"inquiry" means every inquiry, other than a trial,
            conducted under this Code by a Magistrate or Court;

                  )()()(               )()()(            xxx"
 B
          14. 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
      1ection 202 of the Code. In the inquiry envisaged under
 c   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
 0   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. ~

 E        15. In view of what we have observed above, we do not
     find any error in the order impugned.

         16. In the result, we do not find any merit in the appeals
     and the same are dismissed accordingly.
 F
     R.P.                                        Appeals dismissed.