IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.MC.No. 292 of 2008() ------------------------ ST.527/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER: ACCUSED ------------------- MUHAMMED BASHEER, SOLO ARTS, ADVERTISING AND MARKETING, THAMMANAM ROAD, SAMSKARA JUNCTION, PALARIVATTOM, COCHIN. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE & COMPLAINANT -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. M/S.ASIANET SATELLITE COMMUNICATION LTD. 3RD FLOOR, KARIMPANAL ARCADE, EAST FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS COMPANY SECRETARY - SYAM KUMAR. BY PUBLIC PROSECUTOR SRI.AMJAD ALI SRI.SAJI VARGHESE FOR R2 SRI.D.KISHORE(AMICUS CURIAE) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.07.2008, ALONG WITH CRMC NO. 2247 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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