A.S. Naidu, J.
1. In this application under Section 482 of the Code of Criminal Procedure, 1973 the point of law raised is as to whether conducting an inquiry by a Magistrate himself or directing police to cause investigation in a case where accused is residing at a place beyond the territorial jurisdiction of the Magistrate, before issuing process, is mandatory in view of the amended provision of Section 202.
2. On the basis of a complaint filed by the present opposite party before the SDJM, Nabarangpur alleging commission of offences by the petitioner and four of his co-accused under Section 193/197/199/417/418/420/465/471/34 read with Section 120-B of the Indian Penal Code and under Sections 465/628 of the Companies Act, 1956, ICC No. 27 of 2006 was registered. In the said complaint case, Learned SDJM on 15.7.2006 passed the following order:
The complainant Satyanarayan Sarangi is present along with his advocates. He is examined under Section 200, Cr.P.C. and accordingly his initial statements recorded on the reverse of the complaint petition on S.A. On perusal of the complaint petition and statements of the complainant recorded under Section 200, Cr.P.C. along with the xerox copies of the documents filed on behalf of the complainant, it is felt necessary that there is no need to examine any witnesses either under Section 200 or under Section 202, Cr.P.C. Hence put up on 17.7.2006 for orders on the point of cognizance.
3. By order dated 17.7.2006 the Learned Magistrate on being prima facie satisfied took cognizance of the aforesaid offences and directed issue of summons to the accused persons fixing 17.8.2006 for their appearance. The said order according to Learned Counsel for the petitioner is contrary to the amended provision of Section 202, Cr.P.C. and is not sustainable.
4. As the entire argument in this case hinges upon interpretation of Section 202, Cr.P.C., it would be appropriate to quote the said Section for ready reference, as under:
202. Postponement of issue of process : (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has 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 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 Session; 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 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.'
(emphasis supplied)
5. According to Learned Counsel for the petitioner the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercise (sic.) his jurisdiction' in Section 202 have been introduced/inserted by the Legislature by way of amendment to make it mandatory for the Magistrate to inquire into the case himself or direct investigation to be made by a police officer or by such other person as he may think fit, if the accused is residing beyond his jurisdiction before issuance of process. The purpose of such amendment is to ascertain and find as to whether or not there are sufficient ground to proceed against the accused, and thus to obviate any possibility of innocent persons being harassed by unscrupulous litigants and vexatious proceedings.
6. It was also strenuously contended by the Learned Counsel for the petitioner that by the amendment of Section 202 as aforesaid, and particularly thereby inserting the word 'shall', the word 'may' existing in the Section loses its significance. Thus holding an inquiry by the Magistrate himself or directing police, or such other person as he may think fit, to investigate into the case has become mandatory. He further contended that if in a particular provision of an Act/Rules the words 'may' and 'shall' both are used, then the latter must be held to be imperative. In support of such contention he relied upon the decision of the Supreme Court in the case of Mahalaxmi Rice Mill v. State of U.P. reported in AIR 1991 SC 147.
According to him, the Court below acted illegally and with material irregularity in directing issue of summons to the petitioner who admittedly resides beyond its jurisdiction without following the mandatory provision of Section 202, Cr.P.C.
7. Mr. Bijon Ray, Learned Senior Advocate appearing for the opposite party-complainant, repudiating the contentions of the Learned Counsel for the petitioner submitted that whether a Magistrate shall inquire into a case himself or call upon police or any other person to investigate into the same is his discretion. By amendment, no substantial change has been brought about and the discretion of the Magistrate has not been given a go-by. Relying upon the Proviso to Section 202 Mr. Ray submitted that there are also certain exceptions where no such direction for investigation by police or any other person can be given by the Magistrate; Thus, according to Mr. Ray, in spite of the amendment, the final decision as to whether an inquiry has to be made by the Magistrate himself or investigation shall be made by police or not remains the discretion of the Magistrate and if the Magistrate in a given circumstance, as in this case, after perusing the complaint petition and recording the statement of the complainant is prima facie satisfied that any offence has been committed, can take cognizance thereof and issue process to the accused. Such discretion of a Magistrate has not been taken away by the amendment in question.
8. A Magistrate deals with a complaint case in consonance with the provisions of Chapter XV of the Code of Criminal Procedure. Section 200 of the said Chapter provides that a Magistrate empowered to take cognizance of an offence shall examine upon oath the complainant and the witnesses present, if any. After following the said provision, a Magistrate:
(a) if finds that he is not competent to take cognizance of an offence, should resort to the provisions of Section 201 and return the complaint for its presentation before the proper Court. If it is an oral complaint, the Magistrate may direct the complainant 'to the proper Court'.
(b) may postpone issue of process against the accused and inquire into the case either himself or direct an investigation to be made by police, or such other person as he may think fit, for the purpose of ascertaining whether or not there is sufficient ground to proceed against the accused.
(c) may dismiss the complaint if after considering the statements on oath of the complainant and his witnesses as also the result of the inquiry or investigation he is of the view that there is no sufficient ground to proceed against the accused in consonance with Section 203, Cr.P.C.; and
(d) may direct issue of process where he is of the opinion that cognizance should be taken of any offence as there is sufficient ground for proceeding against the accused as provided under Section 204, Cr.P.C.
[See State v. Kastu Behera 41 (1975) CLT 487].
9. The scope of inquiry under Section 202 is of course extremely limited. The said inquiry is only provided for the purpose of ascertaining the truth or falsity of the allegations made in the complaint and whether a prima facie case for issue of process against the accused has been made out. In other words, an inquiry under Section 202 is not in the nature of a trial, for there can be in law only one trial in respect of an offence and that trial can commence only after process is issued to the person complained against. Law is well settled that a person against whom a complaint has been filed does not become an accused unless it is decided to issue process against him. Thus, the object of inquiry under Section 202 is ascertainment of fact as to whether a complainant has valid foundation calling for issue of process to the person complained against and whether it is a baseless one on which no action need be taken.
10. Section 202 as the caption of the Section itself reads is 'Postponement of issue of process'. A Magistrate can postpone issue of process to a person complained against and direct an inquiry or investigation into the case. When it is an inquiry, it has to be held by the Magistrate himself and when it is an investigation it has to be conducted either by a police officer or such other person as the Magistrate may think fit. Such inquiry or investigation prior to amendment of the Section was the discretion of a Magistrate, but then the words introduced by way of amendment, as aforesaid, limit or cut-short the discretion of the Magistrate. In other words, in consonance with the amended provision, if an accused is residing at a place beyond the territorial jurisdiction of a Magistrate, the latter shall postpone the issue of process against him. But then what he would do thereafter According to Learned Counsel for the petitioner the Magistrate has to either inquire into the case himself or may direct an investigation to be made by police or such other person as he may think fit, and only thereafter if he is satisfied that the allegations in the complaint petition are not vexatious he can issue process to the person complained against. In the alternative, he may declined to issue process.
11. According to Mr. Ray, the Proviso to Section 202(1) stipulates that no such direction for investigation shall made in certain cases morefully described in Clauses (a) and (b) thereof. Thus insertion of the aforesaid words 'and shall,...jurisdiction' does not make any remarkable change and that does not take away the discretion of the Court. In other words, it is open to a Court to either inquire into the case himself or cause its investigation as per the stipulations made and/or in the alternative if the Court is satisfied after perusing the complaint petition and the statements recorded, can take cognizance and issue process. Referring to the order of the Court below passed on 15.7.2006 as quoted above, Mr. Ray submitted that the Learned Magistrate after meticulously perusing the complaint petition, examining the complainant under S.A. and being prima facie satisfied has taken cognizance of the alleged offences and issued process. Thus, there has been no illegality.
12. As to what a cognizance-taking Court has to do after filing of a complaint petition has been dealt with in extenso by the Supreme Court in the case of A.R. Antulay v. Ramdas Sriniwas Naik : 1984CriLJ647 . According to the said decision when a private complaint is filed, the Court has to examine the complainant on oath save in cases set out in the proviso to Section 200. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the Court to judicially determine whether a case is made out for issuing process. When it is said that Court issues process, it means the Court has taken cognizance of an offence and has decided to initiate proceeding and as a manifestation of taking cognizance, process is issued which means that the accused is called upon to appear before the Court. This may either take the form of a summons or a warrant, as the case may be. It may be that after examining the complainant and his witnesses the Court in order to doubly assure itself may postpone issue of process and call upon the complainant to keep his witnesses present. The other option open to Court is to direct investigation to be made by a police officer, or by such other person. It must be made distinctly clear that it is neither obligatory to hold an inquiry before issuing process nor to investigate into the case by police. The matter is judicial discretion of Court and is judicially reviewable depending upon materials disclosed by the complainant in his statement on oath under Section 200. Of course in the said decision, the pre-amended provision was under consideration.
13. Now reverting back to Section 202 as amended by Act No. 25 of 2005 which came into force only on 30th June, 2006, it is pertinent to mention here that the discretion of a Magistrate before issuing process is curtailed to certain extent. The words 'and shall... jurisdiction' pre-suppose that under such circumstances, i.e., when an accused is residing outside the jurisdiction of the Court, a Magistrate shall postpone issue of process against the accused and either inquire into the case himself or direct investigation to be made by police officer or by such other person as he may think fit. An embargo is created to the said Section by the Proviso to Sub-section (1) of Section 202 which has been quoted at para-4 above.
14. After meticulously going through the provisions of Section 202 as they stand after amendment, this Court is constrained to observe that the amendment by way of insertion of the words 'and shall, ...jurisdiction' is riot happily worded vis-a-vis the Proviso.
In other words certain gaps are left in fulfillment of the objective to be achieved by the amended provision. Be that as it may, for administration of justice, responsibility of Court is to make a harmonious construction of the legislation so as to achieve the goal or purpose of the amended provision as far as practicable. As has been stated earlier, the said provision has been inserted in order to obviate vexatious litigation and harassment caused to innocent persons residing beyond the territorial jurisdiction of the Court by unscrupulous litigants.
15. A reading of the amended provision coupled with the Proviso to Section 202(1) leads to an irresistible conclusion that the Legislature in its wisdom while obliterating investigation so far as offences triable exclusively by a Court of session, or where the complainant and the witnesses present have been examined on oath under Section 200, has not touched the power or authority of Court to inquire into the case itself. In other words, in a given case, where Clauses (a) and (b) of the Proviso to Section 202(1) are satisfied, a Magistrate shall not direct an investigation to be made by police or such other person as be may think fit, but then, he shall inquire into the case himself. The later power is not taken away from him and insertion of the words 'and shall, ...jurisdiction' make it mandatory for the Magistrate to inquire into the case himself in a case where the accused is residing beyond his territorial jurisdiction. According to this Court, a recent amendment/intention of the Legislature has to be given precedence over the earlier ones. In the instant case, as the impugned order reveals, the Learned Magistrate never inquired into the case himself before directing issue of process to the petitioner. In view of the fact that the petitioner is residing beyond its jurisdiction, it was incumbent upon the Magistrate to postpone issue of process and inquire into the allegations made in the complaint petition himself. The question posed thus stands answered.
16. On the aforesaid analysis, this Court disposes of this CRLMC by quashing the direction of the Court below to issue process to the petitioner and further directs SDJM, Nabarangpur to inquire into the case himself in the light of the discussion made in the preceding paragraphs of this judgment and pass necessary orders in consonance with law. The interim order passed on 17.8.2006 stands vacated.