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Section 202 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Section 200 in The Code Of Criminal Procedure, 1973
Section 204 in The Code Of Criminal Procedure, 1973
Section 203 in The Code Of Criminal Procedure, 1973

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Kerala High Court
Muhammed Basheer vs The State Of Kerala on 31 July, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 292 of 2008()


1. MUHAMMED BASHEER, SOLO ARTS,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. M/S.ASIANET SATELLITE COMMUNICATION LTD.

                For Petitioner  :SRI.BABU S. NAIR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :31/07/2008

 O R D E R
                              R.BASANT, J
                      ------------------------------------
               Crl.M.C. Nos.292 and 2247 of 2008
                      -------------------------------------
               Dated this the 31st day of July, 2008

                                  ORDER

What is the import and consequence of the amendment to Section 202 Cr.P.C by Act 25 of 2005 w.e.f 23.06.06 by which the words "and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were introduced ? Is the stipulation couched in the above language directory or mandatory ? Does that stipulation apply at all to prosecutions under Section 138 of the Negotiable Instruments Act? If the sworn statement of all necessary witnesses cited by the complainant is recorded under Section 200 Cr.P.C and the materials are sufficient to induce the requisite satisfaction in the mind of the learned Magistrate that there is sufficient ground for proceeding, should the learned Magistrate still proceed to the stage of Section 202 Cr.P.C and conduct a further enquiry ? What would be the content and scope of such an extended enquiry in such circumstances ? When does the enquiry under Section 200 Cr.P.C end and the enquiry under Section 202 Cr.P.C commence ? Is the boundary line between the enquiry under Section 200 Crl.M.C. Nos.292 and 2247 of 2008 2 Cr.P.C and 202 Cr.P.C so firm, definite, stable and specific ? These questions arise for consideration in these cases.

2. These questions have been raised in several similar matters. Counsel were requested to advance detailed arguments. All counsel who wanted to be heard on the question were given opportunity to advance their arguments. Advocate D.Koshore was requested to assist the Court as Amicus Curiae also. By this common order, I propose to dispose of only Crl.M.C.No.292 of 2008 and Crl.M.C No.2247 of 2008.

3. To the relevant and vital facts first. Crl.M.C No.292 of 2008 is filed by the accused who faces indictment in a prosecution under Section 138 of the N.I Act. The short grievance raised by him is that no enquiry under Section 202 Cr.P.C as amended has been conducted by the learned Magistrate before process was issued to him under Section 204 Cr.P.C. The learned Magistrate was satisfied by recording the statement of the complainant under Section 200 Cr.P.C. The same was received by an affidavit filed under Section 145 of the N.I Act. According to the petitioner, cognizance could not, at any rate, have been taken, after the amendment came into force, against a person- resident outside the jurisdiction of the court without and before Crl.M.C. Nos.292 and 2247 of 2008 3 conducting an enquiry under Section 202 Cr.P.C. He prays that the proceedings against him may hence be quashed.

4. Crl.M.C No.2247 of 2008 is filed by the complainant in a prosecution under Section 138 of the N.I Act. The grievance of the complainant is that though all materials have been placed before the learned Magistrate to induce the requisite satisfaction under Section 203/204 Cr.P.C, unnecessarily there has been a direction to proceed with the enquiry under Section 202 Cr.P.C. Loan documents relating to the transaction in question were directed to be produced. The learned counsel for the petitioner contends that a ritualistic further enquiry under Section 202 Cr.P.C is not necessary or warranted at all notwithstanding the amendment to Section 202 Cr.P.C. He challenges the impugned order which reads as follows:

"3.4.2008 - Loan documents not produced. For examination of complainant 5.6.08. Sd/- Magistrate." It is prayed that the said order may be set aside and the learned Magistrate may be directed to take a decision u/s 203/204 Cr.P.C on the basis of the materials presently available.

5. To the statutory provisions next, cognizance can be taken by a criminal court under Section 190 Cr.P.C and 190(1) (a) Crl.M.C. Nos.292 and 2247 of 2008 4 Cr.P.C clearly shows that such cognizance can inter alia be taken upon receiving a complaint of facts which constitute such offence. I extract Section 190 Cr.P.C "Section 190 Cr.P.C.: 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 specifically 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."

(emphasis supplied)

6. The procedure to be followed in respect of the complaints to the Magistrate under Section 190(1)(a) Cr.P.C is given in Chapter XV of the Cr.P.C and to me it appears that Section 200 and 202 Cr.P.C as they now stand deserve to be extracted. They read as follows:

"Section 200 Cr.P.C: 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:
Crl.M.C. Nos.292 and 2247 of 2008 5
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 Magistrate need not re-examine them.
(emphasis supplied) Section 202 Cr.P.C: 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 Sessions; or
b) where the complaitn 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.

Crl.M.C. Nos.292 and 2247 of 2008 6 (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."

[The portion in Section 202 Cr.P.C introduced by Act 25 of 2005 which amendment came into force w.e.f 23.06.06 is shown above by underlining].

7. The enquiry under Section 200 or 202 Cr.P.C is to be undertaken by a court to decide the course of action which the court has to follow at the end of such enquiry. The enquiry under Section 202 Cr.P.C follows the enquiry under Section 200 Cr.P.C and at the end of such enquiries, the crucial question to be decided is whether the complaint deserves to be dismissed under Section 203 Cr.P.C or whether process deserves to be issued under Section 204 Cr.P.C. I extract Sections 203 and 204 Cr.P.C below:

"Section 203 Cr.P.C : Dismissal of complaint--If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Section 204 Cr.P.C.: Issue of process--(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--
Crl.M.C. Nos.292 and 2247 of 2008 7
a) a summons-case, he shall issue his summons for the attendance of the accused, or
b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
.............................................."
(emphasis supplied)
8. If the complaint is not dismissed under Section 203 Cr.P.C, the proceedings before the Magistrate shall take the next step to Chapter XVI and Section 204 Cr.P.C appears in Chapter XVI. The crucial question to be considered under Sections 203and204 Cr.P.C is whether in the opinion of the Magistrate "there is sufficient ground for proceeding". If there is no sufficient ground for proceeding, the complaint must be dismissed under Section 203 Cr.P.C. If there is sufficient ground for proceeding, the process shall be issued under Section 204 Cr.P.C.

9. The scheme of the Cr.P.C shows undoubtedly that report submitted by the police after due investigation stand on a higher pedestal than complaints filed. Whether a private individual or a public official files such complaints to request the court to take cognizance under Section 190 (1) (a), the procedure stipulated is different. This could be seen through out the Code of Crl.M.C. Nos.292 and 2247 of 2008 8 Criminal Procedure. If we carefully analyse the provisions of Section 239/240 Cr.P.C in contra distinction to the provisions of Section 245(i)/246 Cr.P.C also the higher status given to a police report is clearly discernible. When cognizance is sought to be taken on the basis of a private complaint, the law insists that the sworn statements of the complainant and witnesses, if any, must be recorded under Section 200 Cr.P.C At that stage, evidently the court must consider whether the requisite satisfaction under Section 203/204 Cr.P.C can be entertained. If such satisfaction cannot be entertained, the courts have the option either to dismiss the complaint under Section 203 Cr.P.C or to proceed to conduct an enquiry under Section 202 Cr.P.C. Section 202 Cr.P.C prior to its amendment, had made it clear that it was optional for the Magistrates to embark on an enquiry under Section 202 Cr.P.C. Evidently that question will arise only if the requisite satisfaction under Section 203/204 Cr.P.C - as to whether there is sufficient ground (or not) for proceeding could not be entertained at the end of examination of the complainant and witnesses present under Section 200 Cr.P.C. Enquiry under Section 202 Cr.P.C was available to be undertaken by a Magistrate if he were not able to entertain the requisite satisfaction at the end of the Crl.M.C. Nos.292 and 2247 of 2008 9 recording of the statements under Section 200 Cr.P.C. In short, 202 Cr.P.C was purely optional prior to the amendment in 2005.

10. However, the proviso to Section 202(2) Cr.P.C made it clear that if the offence were triable exclusively by the court of session, the Magistrate "shall call upon the complainant to produce all his witnesses and examine them on oath". Section 202 Cr.P.C was optional, but where the offence alleged was one triable exclusively by the Court of Session, a duty was cast on the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. That stipulation is to be viewed from the angle of providing reasonable opportunity for the accused to face the indictment for a serious offence triable exclusively by the court of session. That stipulation was made not merely to enable the Magistrate to entertain the requisite satisfaction under Section 203 or 204 Cr.P.C, but only to zealously protect the reasonable opportunity of an indictee facing indictment for a serious offence like a Sessions offence. He has a right to know what statements are likely to be given by the witnesses proposed to be examined by the complainant in the Sessions trial. An indictee facing prosecution in a Sessions offence on the basis of a police report shall always have the statements Crl.M.C. Nos.292 and 2247 of 2008 10 recorded by the investigating officer in the course of investigation under Section 161 Cr.P.C to ascertain what the nature of evidence against him is likely to be. The proviso to Section 202 (2)Cr.P.C was hence enacted not necessarily to enable the Magistrate to entertain the requisite satisfaction at the stage of Section 203/204 Cr.P.C, but only to safeguard the interests of an accused facing a serious trial.

11. So far as non sessions offence are concerned, Section 202 Cr.P.C remained purely optional. After recording the sworn statements of the complainant and the witnesses present if any, under Section 200 Cr.P.C if the Magistrate were not able to come to a firm decision as to whether the course under Section 203 or 204 Cr.P.C was to be followed, the Magistrate had the avenue under Section 202 Cr.P.C available with him to continue the enquiry to decide whether the course under Section 203 or 204 Cr.P.C is to be followed.

12. The operation of the Code led the legislature to realize the fact (and entertain the satisfaction) that at times, cognizance was taken and the accused persons were subjected to needless harassment by non application of an alert judicial mind at the stage when cognizance was taken. The 2005 amendment to Crl.M.C. Nos.292 and 2247 of 2008 11 Section 202 Cr.P.C reveals this concern of the legislature to ensure that cognizance is not taken to the detriment, prejudice and harassment of accused persons who do not deserve to be proceeded against. A classification appears to have been made of accused persons residing within the jurisdiction of the Magistrate taking cognizance and those residing outside the jurisdiction of such Magistrate. It was stipulated by the amendment to Section 202 Cr.P.C that in respect of the accused persons residing outside the jurisdiction of the Magistrate taking cognizance, an enquiry under Section 202 Cr.P.C shall be conducted. Earlier the secion only said that an enquiry under Section 202 Cr.P.C may be conducted and there was identical stipulation in respect of both these classes of persons. But by the amendment, it was stipulated that such enquiry shall be conducted in respect of persons belonging to the latter class - of those residing outside the jurisdiction of the Magistrate. In respect of the others there was no change in the procedure to be followed.

13. There is no challenge before me against such classification. It appears that the legislature was justified in making such a classification as persons-resident outside the Crl.M.C. Nos.292 and 2247 of 2008 12 jurisdiction will necessarily be put to greater hardship, inconvenience and harassment by an unjustified cognizance taken against them. The purpose of the amendment thus appears to be very clear and evident. Unjustified cognizance should not be taken against individuals. They should not be forced and compelled to face such unjustified prosecution. A Magistrate taking cognizance against such class of persons residing outside the jurisdiction must be more careful and circumspect before cognizance is taken against them and process is issued. The anxiety of the legislature is thus clearly reflected in these provisions. What remained optional is sought to be made compulsory in respect of a class of persons by the introduction of the amendment in Section 202 Cr.P.C. The notes on clauses in the amendment bill shows the following as the concern which prompted the legislature to bring in that amendment.

"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."

Crl.M.C. Nos.292 and 2247 of 2008 13

14. To me it appears to be crucially relevant that unlike the proviso to Section 202 (2) Cr.P.C, the introduction of the requirement couched in mandatory language by use of the expression `shall' was only to insist that the Magistrates exercise due care and caution before issuing process under Section 204 Cr.P.C obliging an indictee resident outside the jurisdiction to come to the jurisdiction and defend such indictment. The caution and the safeguard was only to the Magistrate and certainly the introduction of the amendment was not to protect any right of the accused for reasonable opportunity to defend himself as is the case with the proviso to Section 202(2) Cr.P.C.

15. It may be apposite in this context to advert to the nature, scope, quality and contours of the jurisdiction of the Magistrate under Section 203/204 Cr.P.C. At the threshold, the purpose is twofold. As it has often been repeated, a bona fide complainant who has a genuine grievance must be granted access to Court and given a further and fuller opportunity to substantiate the allegations raised by him against the indictee. He is not expected to prove his case to the hilt at that stage. Whether conviction would follow or the accused will be entitled for acquittal is not a factor to be considered at the stage of Section Crl.M.C. Nos.292 and 2247 of 2008 14 203/204 Cr.P.C. Whether there is sufficient ground for proceeding is the only, short and the limited question to be considered at the stage of Section 203/204 Cr.P.C. But at the same time, a vexatious complainant initiating unjustified proceedings against an indictee and trying to abuse and exploit the criminal adjudicatory processes, who does not have a satisfactory case, must be shown the door at that stage itself. He must not be permitted to proceed further and cause harassment and prejudice to a person who does not deserve to suffer such trauma. This is the mandate of Section 203/204 Cr.P.C. Enquiry under Section 200 and 202 Cr.P.C are geared and catered to answer this basic question as to whether there is sufficient ground to proceed against an indictee or not. It has often been repeated that meticulous evaluation of the acceptability of the allegations and decision on complicated questions of law and fact are not to be undertaken at this stage. The short question to be decided is whether there is sufficient ground to proceed against an indictee.

16. I have taken pains to understand the purpose of Section 200 and 202 Cr.P.C as such clear understanding is essential to properly understand the scope of the amendment by Crl.M.C. Nos.292 and 2247 of 2008 15 which an enquiry under Section 202 Cr.P.C appears to have been made compulsory.

17. It may be apposite in this context to consider when the enquiry under Section 200 Cr.P.C would end and the enquiry under Section 202 Cr.P.C would start. I am unable to locate any such Rubicon between the enquiry under Section 200 Cr.P.C and the enquiry under Section 202 Cr.P.C. Under Section 202 Cr.P.C the Magistrate himself may conduct the enquiry. He may direct a police officer or any other person to conduct an investigation. Where he himself conducts the enquiry there is virtually no difference between the enquiry under Section 200 and the enquiry under Section 202 Cr.P.C. The learned Magistrate at the stage of Section 202 Cr.P.C will only record the sworn statements of witnesses cited but not present at the stage of Section 200 Cr.P.C. In a proceedings under Section 138 of the N.I Act, there can ordinarily be no scope for investigation by a police officer or any other person. In a given case it is quite possible that the complainant may cite `n' number of witnesses in addition to himself and produce all of them before the Magistrate in the enquiry under Section 200 Cr.P.C. If the complainant and all those witnesses are examined at the stage of Section 200 Cr.P.C Crl.M.C. Nos.292 and 2247 of 2008 16 and there is no need perceived for any investigation by a police officer nothing more would remain to be enquired into at the stage of Section 202 Cr.P.C. It would be idle, puerile, unnecessary and a sheer waste of time in such a case to proceed to any enquiry under Section 202 Cr.P.C. The requisite satisfaction under Section 203/204 Cr.P.C must be entertained or not, in such a case at the end of the enquiry under Section 200 itself as nothing survives and it is unnecessary for the court in such a case to proceed to the enquiry under Section 202 Cr.P.C. I take assistance from this example to decide whether notwithstanding the fact that mandatory language is used by the amendment, it is imperative that the court must proceed to such an enquiry under Section 202 Cr.P.C in all cases. The enquiry under Section 202 Cr.P.C in a case where no investigation is necessary, is not qualitatively different from the enquiry under Section 200 Cr.P.C.

18. The learned counsel for the accused Sri.Babu Nair contends that the golden rule of literal interpretation and the Mischief Rule in Heydon have got to be adopted while considering the scope of the amendment to Section 202 Cr.P.C. The legislature knew that under Section 202 Cr.P.C prior to amendment also, enquiry was optional. Conscious of the law that Crl.M.C. Nos.292 and 2247 of 2008 17 prevailed prior to amendment, the legislature has chosen to introduce the amendment which makes it obligatory to conduct an enquiry under Section 202 Cr.P.C when it comes to the class of persons who reside outside the jurisdiction of the Magistrate. The counsel contends that the golden rule of literal interpretation must persuade this Court to accept that the legislature had consciously introduced a mandatory requirement in the case of one class of persons that enquiry under Section 202 Cr.P.C must be invariably conducted. Counsel argues quoting the celebrated decision in Taylor v. Taylor that when the statute mandates a particular act to be performed in a particular manner, courts cannot by interpretation render such stipulation optional. It must be held that a mandatory section 202 Cr.P.C enquiry must be conducted and that having not been conducted, cognizance taken in Crl.M.C 292 of 2008 is unjustified and deserves to be quashed, it is contended.

19. The counsel relies on various decisions in support of the proposition that when the legislature mandates some act to be done in a particular manner it has got to be done in that particular manner and in no other manner at all. The requirement is mandatory and not merely directory.

Crl.M.C. Nos.292 and 2247 of 2008 18

20. It is unnecessary to embark on a theoretical discussion as to what is mandatory and what is directory. All stipulations of law are expected to be complied with and in that view of the matter all such stipulations are mandatory. But non compliance of every such direction which is to be followed need not necessarily result in rendering the proceedings void, illegal or unsustainable. In this view of the matter, stipulations of law the non compliance of which do not render proceedings void can be broadly stated to be only directory and those which would render the procedings to be null, void and nonest can be held to be mandatory. The nature of the stipulation and the consequences stipulated will have to be considered in this context. The purpose of the stipulation has got to be alertly taken into consideration.

21. The learned counsel for the complainant in Crl.M.C.No.2247 of 2008 Sri.Reji George contends that it would be idle, notwithstanding the language of the amendment, to assume that the stipulation introduced is mandatory in the sense that failure to comply would render the cognizance taken void, bad or nonest in law. The counsel contends that use of the expression `shall' cannot in every case lead to the unjustifiable conclusion that the stipulation is mandatory in the sense that non Crl.M.C. Nos.292 and 2247 of 2008 19 compliance would render the action taken null, void and nonest. The counsel contends that the use of the expression `shall' in procedural law must be approached, appreciated and understood with great care and caution. Merely because the language employed is `shall' it would be improper, idle and puerile to assume that non compliance with every such stipulation would render the proceedings void and unenforceable or liable to be quashed. The learned counsel contends that the mischief rule has also got to be borne in mind and the literal rule or the golden rule is not the only rule to be followed in interpretation, more so when the challenge is to interpret the expression `shall' relating to procedure to be adopted by a Court.

22. The learned counsel Sri.Reji George contends that the amendment of the law was intended to prevent a mischief and that mischief is of Magistrates issuing process against persons residing outside the jurisdiction without due and sufficient application of mind. It is that mischief which was sought to be curbed. An alert appreciation of the mischief which was sought to be prevented must be made by the court while interpreting the portion introduced by amendment. The mischief rule need not always be expansive and in an appropriate case it can also be Crl.M.C. Nos.292 and 2247 of 2008 20 restrictive. The learned counsel for the petitioner relies on the Maxwell on the Interpretation of Statutes 12th edition page 42 which is extracted below:

"Consideration of the "mischief" aimed at may also lead to a restricted interpretation of a statute." Conscious of the mischief, which is sought to be prevented when the amended statute is interpreted, it cannot lead to a ritualistic requirement of the court proceeding further even after it is convinced firmly on the materials available after enquiry under Section 200 Cr.P.C that there is or there is no sufficient ground to proceed with the complaint. An interpretation, unnecessarily expansive and obliging the courts to follow ritualistic continuation of the proceedings, should not be accepted, contends the learned counsel for the petitioner.

23. The learned counsel for the petitioner Sri.Reji George further contends that the decisions of the Supreme Court in R.N.Jadi and Brothers v. SubhashChandra [(2007) 6 SCC 420] and Kailash v. Nanhku [(2005) 4 SCC 480] have adverted in detail to the manner in which the expression `shall' can be and should be interpreted when employed by the draftsman in the processual law. The counsel refers to the following observations Crl.M.C. Nos.292 and 2247 of 2008 21 in para.27, 28 and 29 of Kailash v. Nanhku to contend that the expression `shall' in Section 202 Cr.P.C introduced by the Amendment Act of 2005 must receive a very careful consideration before concluding that the requirement is mandatory and non compliance will be fatal.

"27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chargin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the Crl.M.C. Nos.292 and 2247 of 2008 22 ends of justice. The observations made by Krishna Iyer, J. in Shshil Kumar Sen v. State of Bihar are pertinent : (SCC p.777, paras 5-6) "The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitia where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive.
29. In State of Punjab v. Shamlal Murari the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that : (SCC p.720) "Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
In Ghanshyam Dass v. Dominion of India the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle."
(emphasis supplied)
24. The learned counsel has also invited my attention to similar observations appearing in R.N.Jadi and Brothers v.

SubhashChandra.

25. Sri.Reji George further points out that the proviso to Section 202(2) Cr.P.C which is also couched in similar language - by the use of the word `shall' came to be interpreted in Rosy v. Crl.M.C. Nos.292 and 2247 of 2008 23 State of Kerala [AIR 2000 S.C 637]. The counsel points out that the expression `shall' appearing in the proviso to Section 202(2) Cr.P.C had also received liberal interpretation in Rosy V. State of Kerala to suggest that mere non compliance does not render the action taken by the Magistrate null, void or nonest. The learned counsel, in these circumstances, contends that merely because the amendment had brought in the requirement of conducting an enquiry under Section 202 Cr.P.C by the use of the word `shall', a meaning not justified by the purpose which an enquiry under Section 200 and 202 Cr.P.C has to achieve, cannot and may not be given to the amended provision.

26. Sri.Reji George further contends that the soul of a prosecution under Section 138 of the Negotiable Instruments Act is the element of expedition which must be employed in the disposal of the cases. The counsel relies on the provisions of the N.I Act to contend that there has been great emphasis in Section 138 of the Negotiable Instruments Act as initially introduced and by subsequent amendment in 2002 to the cause of expeditious disposal. An interpretation cannot be given to amended Section 202 Cr.P.C which would defeat the cause of expedition which is Crl.M.C. Nos.292 and 2247 of 2008 24 mandatory in a prosecution under Section 138 of the Negotiable Instruments Act.

27. Though there was an attempt to contend that the non obstante clause in Sections 142 and 145 of the Negotiable Instruments Act must make the provisions of the amended 202 Cr.P.C inapplicable to prosecutions under Section 138 of the Negotiable Instruments Act, I am unable to accept the said argument. Fairly, after discussions at the Bar, the learned counsel Sri.Reji George does not press that contention. I note that the non obstante clauses in Sections 142 and 145 of the N.I Act cannot in any way directly control the amended provisions in Section 202 Cr.P.C though the spirit of expedition which must be there in the disposal of prosecutions under Section 138 of the Negotiable Instruments Act must help and guide the court to correctly understand the import and the consequences of the amendment introduced in Section 202 Cr.P.C.

28. The counsel were required to research and it is submitted that no other High Court has so far considered this question specifically as to whether the amended Section 202 Cr.P.C would control and guide the prosecutions under Section 138 of the Negotiable Instruments Act. However, Sri.Reji George Crl.M.C. Nos.292 and 2247 of 2008 25 has placed before me a decision by Justice K.Mohan Ram of the High Court of the Madras in Crl.O.P.No.36249 of 2007 dated 18.12.07 (it is not seen reported in any journal) in which the learned Judge has taken the view that the amended provisions contained in Section 202(1) Cr.P.C may not apply to a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act.

29. It is in this context important to take note of the nature of an enquiry before issue of process which can and should take place in a prosecution under Section 138 of the Negotiable Instruments Act. The offence under Section 138 of the Negotiable Instruments Act is a special statutory offence where the ingredients are specified with precision. If a proper complaint is filed and such complaint is supported by the necessary documentary evidence as also the sworn statement of the complainant in the form of an affidavit under Section 145 of the Negotiable Instruments Act nothing more would be required ordinarily to entertain the requisite satisfaction under Section 204 Cr.P.C. The cheque has to be produced. The memo of dishonour of the cheque will have to be produced. There must be materials to show that the statutory time table has been followed. On the Crl.M.C. Nos.292 and 2247 of 2008 26 question whether the cheque is issued for the due discharge of a legally enforcible debt or liability, the presumptions under Sections 118 and 139 of the Negotiable Instruments Act will also come into play. The averments in the affidavit can certainly induce the requisite satisfaction to invoke such presumptions. The nature of the contentions in defence which an indictee wants to raise will also ordinarily be available in the reply notice if any issued by him to the complainant. If there is no reply notice, appropriate inferences can also certainly be drawn at the threshold. In these circumstances, I am of the opinion that a properly drafted complaint supported by the necessary documents and explained by an affidavit under 145 of the Negotiable Instruments Act filed to satisfy the requirement of Section 200 Cr.P.C can certainly induce the requisite satisfaction ordinarily in the mind of the court that there is sufficient ground for proceedings. In such a case, I am of the opinion that though the amended Section 202 Cr.P.C would be applicable, it will not be necessary to embark on a meaningless ritualistic enquiry under Section 202 Cr.P.C. No doubt the amended 202 Cr.P.C will not be inapplicable to prosecutions under Section 138 of the Negotiable Instruments Act, but I take the view that in a Crl.M.C. Nos.292 and 2247 of 2008 27 prosecution under Section 138 of the Negotiable Instruments Act, if the requisite satisfaction under Section 203/204 Cr.P.C can be entertained by the Magistrate on the materials available at the end of examination of the witnesses under Section 200 Cr.P.C, it is not invariably necessary to proceed to the enquiry under Section 202 Cr.P.C notwithstanding the language in which the amendment is couched.

30. Even in a prosecution under Section 138 of the Negotiable Instruments Act there may be circumstances when the learned Magistrate after alertly applying his mind may need further materials and in all such circumstances, the Magistrate can and must proceed to conduct an enquiry under Section 202 Cr.P.C. Where there is possible dispute about territorial jurisdiction or where complicity is sought to be imposed with the aid of S.141 Cr.P.C, the Court may ordinarily be justified, if no sufficient materials are not already available, in proceeding to the enquiry under Section 202 Cr.P.C. The crucial question is whether the requisite satisfaction can be entertained after completion of the enquiry at the stage of Section 200 Cr.P.C. If the learned Magistrate is not so satisfied, he must proceed to conduct the enquiry under Section 202 Cr.P.C. In the light of the Crl.M.C. Nos.292 and 2247 of 2008 28 amendment of Section 202 Cr.P.C, in respect of that class of persons - those who reside outside the jurisdiction of the court, pointed application of mind must be made by the Magistrate to satisfy himself whether there is sufficient ground for proceeding or not. If the learned Magistrate is satisfied that such satisfaction can be entertained, the enquiry under Section 202 Cr.P.C can be dispensed with. Superior courts will not interfere with the discretion exercised by the Magistrate at that stage merely because a ritualistic enquiry under Section 202 Cr.P.C has not been undertaken. But in a case where the court is satisfied that sufficient materials are not there, certainly cognizance taken can be faulted and the matter can be sent back to the Magistrate for conducting enquiry under Section 202 Cr.P.C.

31. I may summarise my conclusions as follows:

i) Alert application of mind must be made by a criminal court at the stage of Section 203/204 Cr.P.C while taking cognizance and issuing process to satisfy itself that there is "sufficient ground for proceeding" against an accused person.

ii) This must be done by the Magistrate, cognizant of the twin requirements and challenge at the threshold - of giving a bona fide complainant a fuller and more exhaustive opportunity Crl.M.C. Nos.292 and 2247 of 2008 29 to substantiate his genuine grievance and of showing the door to a vexatious complainant trying to abuse the criminal adjudicatory process against a person who does not deserve to endure the unnecessary trauma.

iii) Ordinarily process can be issued under Section 204 Cr.P.C at the end of the enquiry under Section 200 - Ie. after recording the sworn statement of the complainant and his witnesses if any present if the requisite satisfaction that there is sufficient ground for proceeding can be entertained by the Magistrate on the materials available.

iv) If at the end of the enquiry under Section 200 Cr.P.C the Magistrate is not able to come to a conclusion as to whether there is or there is no sufficient ground to proceed the Magistrate shall proceed to conduct an enquiry under Section 202 Cr.P.C. Such enquiry may be conducted by the Magistrate himself or he may direct an investigation to be conducted by a police officer or any other person.

v) The criminal court at that stage must be alertly conscious of the greater trauma that a person who resides outside its jurisdiction will have to endure if process were issued by the court against him.

Crl.M.C. Nos.292 and 2247 of 2008 30

vi) The Magistrate, in the case of a person residing outside his jurisdiction, must ordinarily come to a conclusion as to whether there is sufficient ground to proceed against such accused only after conducting an enquiry under Section 202 Cr.P.C.

vii) Notwithstanding the fact that requirement of (vi) is introduced by a specific amendment substituting the permissive "may" by the command of "shall", the non compliance does not vitiate the cognizance taken and the consequent issue of process as the purpose of such an enquiry under Section 200 and 202 Cr.P.C is only to decide whether or not "there is sufficient ground for proceeding".

viii) Section 202 Cr.P.C as amended applies to prosecutions under Section 138 of the N.I Act also in the light of Section 4(2) of the Code and in the absence of any specific contra provision in Section 138 of the N.I Act.

ix) But ordinarily in a prosecution under Section 138 of the N.I Act, if a proper complaint is filed supported by necessary documents and a proper affidavit is filed under Section 145 of the N.I Act it may not be necessary for the Magistrate to proceed to hold the enquiry under Section 202 Cr.P.C as the requisite Crl.M.C. Nos.292 and 2247 of 2008 31 satisfaction can be entertained at the end of the enquiry under Section 200 Cr.P.C itself.

x) But in a case where there is possibility of dispute regarding territorial jurisdiction, or dispute regarding complicity alleged with the help of S.141 of the N.I Act, it will be proper, necessary and advisable for the Magistrate to hold enquiry under Section 202 Cr.P.C, if requisite satisfaction is not induced by the materials placed before it under clause (ix) above.

xi) Even in such enquiry under Section 202 Cr.P.C in a prosecution under Section 138 of the N.I Act, it is not invariably necessary to examine a complainant and his witnesses personally on oath. They can be directed to file affidavit or additional affidavit u/s 145 of the N.I Act on the specific aspects where materials are found necessary or the Court entertains doubts. Section 145 of the N.I Act as explained in the decision in Vasudevan v. State of Kerala [2005(1) K.L.T 220] shall apply to the stage of enquiry under Section 202 Cr.P.C also. Courts must be specifically cognisant of the need for expedition in a prosecution under Section 138 of the N.I Act.

xii) In a case where the requisite satisfaction under Section 204 Cr.P.C can be entertained convincingly by the Crl.M.C. Nos.292 and 2247 of 2008 32 materials available on record, the non compliance with Section 202 Cr.P.C does not ipso facto vitiate the cognizance taken or the process issued. Section 202 does not contemplate or mandate a ritualistic enquiry merely to satisfy the letter of the procedural/adjectival law even after the requisite satisfaction under Section 203/204 Cr.P.C is convincingly entertained by the Court. In this sense the requirement introduced by amendment is only directory and not mandatory, though all courts are certainly expected to follow that stipulation.

32. Having so stated the legal principles, the next question is whether the cognizance taken in Crl.M.C.No.292 of 2008 can be faulted for the reason that Section 202 enquiry has not been conducted. I shall carefully avoid any detailed discussion of the facts. But I am satisfied that in S.T.No.527 of 2007, from which Crl.M.C.No.292 of 2008 arises, there is adequate materials to induce the requisite satisfaction in the mind of the court that there is sufficient ground to proceed. In fact there is no contention even that the requisite satisfaction cannot be entertained. The only contention is of non compliance of the mandate of Section 202 Cr.P.C. There is no contention that non compliance has vitiated the cognizance taken on merits. In these Crl.M.C. Nos.292 and 2247 of 2008 33 circumstances notwithstanding the fact that the petitioner hails from an area outside the jurisdiction of the learned Magistrate, the omission to conduct an enquiry under Section 202 Cr.P.C cannot be said to vitiate the cognizance taken and the issue of process under Section 204 Cr.P.C by the learned Magistrate. The challenge against the cognizance taken and the initiation of proceedings in S.T.527 of 2007 in Crl.M.C.No.292 of 2008 must hence fail.

33. In so far as Crl.M.C.No.2247 of 2008 is concerned, the learned Magistrate had directed that the loan documents be produced and the complainant be examined under Section 202 Cr.P.C. The affidavit filed by the petitioner as well as the documents produced must certainly according to me have induced the requisite satisfaction in the mind of the court that the presumptions under Sections 118 and 139 can be invoked at the threshold and it is not necessary to get involved in a more detailed enquiry about the existence of a legally enforcible debt/liability to discharge which the cheque is alleged to have been issued. Production of the loan documents and an enquiry into that aspect was evidently not required or necessary to entertain the threshold satisfaction that there is sufficient ground Crl.M.C. Nos.292 and 2247 of 2008 34 to proceed in the matter. It is trite that not a meticulous evaluation of guilt but only an enquiry as to whether or not there is materials at the threshold to entertain the requisite satisfaction under Section 203/204 Cr.P.C need be undertaken at this stage. I am, in these circumstances, satisfied that it was not necessary for the learned Magistrate in Crl.M.P.No.1867 of 2008, from which Crl.M.C.No.2247 of 2008 arises to proceed further ritualistically to the stage of enquiry under Section 202 Cr.P.C.

34. I am, in these circumstances, satisfied that Crl.M.C.No.2247 of 2008 deserves to be allowed. The learned Magistrate must be directed to take a decision on the question of cognizance on the basis of the enquiry already conducted and without embarking on a further detailed enquiry. The decision must be taken by the learned Magistrate on the basis of the materials available. The direction that the case be posted for production of loan documents and examination of the complainant deserves to be set aside.

35. In the result:

i) Crl.M.C No.2247 of 2008 is allowed. The learned Magistrate is directed to consider the question of issue of process at the stage of Section 203/204 Cr.P.C on the basis of the Crl.M.C. Nos.292 and 2247 of 2008 35 available materials without proceeding further to conduct an enquiry under Section 202 Cr.P.C.

ii) Crl.M.C.No.292 of 2008 is, in these circumstances, dismissed and it is held that the cognizance taken and the issue of process do not warrant interference.

(R.BASANT, JUDGE) rtr/-