TaxTMI 
TaxTMI 
2010 (7) TMI 1140
X X X X Extracts X X X X
X X X X Extracts X X X X
.... duty bound to follow the procedure laid down under section 202 sub-clause (1) of the Criminal Procedure Code as amended by the Code of Criminal Procedure (Amended) Act 2005 (25 of 2005) which came into force with effect from 23/06/2006. He submitted that by virtue of the said amendment, the Magistrate in cases where accused is residing outside the jurisdiction of the Court, has a statutory obligation to postpone the issuance of process and to hold an inquiry before issuing process. In support of the said submission, he has relied upon the judgment of the learned Single Judge of this Court (Brother S.C. Dharmadhikari, J.) in the matter of Capt. S.C. Mathur & Anr. vs. M/s Elektronik Lab & Ors. (Judgment in Criminal Application No.2640 of 2009 with companion matters decided on 8th January, 2010) . 3. Since in large number of cases a similar ground was urged by the learned Counsel appearing on behalf of the applicants therein, all these matters were kept for the purpose of considering this issue more particularly in the context of cases under section 138 of the Negotiable Instruments Act and, accordingly, I have heard the learned Senior Counsel on either side on this point. 4. M....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the amendment in which purposive interpretation was resorted to by referring to certain paragraphs of the Judgment in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. (2007) 6 SCC 528. He submitted that the provisions of section 4(2) of the Criminal Procedure Code were not considered by the learned Single Judge in Cat. S.C. Mathur's case (supra). In this context, he also referred to the judgment of the learned Single Judge (Brother D.B. Bhosale, J.) in Peacock Industries Ltd. & Ors vs. Budhrani 2006(2) Bom.C.R. (Cri) 368, more particularly para 17. 6. Mr. Subhash Zha, the learned Counsel appearing on behalf of one of the complainants, has submitted that the learned Single Judge of the Kerala High Court has held that the provisions of section 202 sub-clause (1) are directory and not mandatory. He relied upon the judgment of the Kerala High Court in Muhammed Basheer and etc. vs. The state of Kerala & Anr. 2009 CRI.L.J. 246. He also relied upon the judgment of the Madras High Court in Prof. D. Kannammal vs. Tmt. Renuga Palanisamy MANU/TN/9866/2007. He further relied upon the judgment of Patna High Court in Rakesh Singh & Anr. vs. State of Bihar & Ors. 2009 CRI. L.J.668. He ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ectory, it would also be necessary to examine other provisions of the Criminal Procedure Code since the issue raised before this Court is pertaining to the interpretation of the said provision. Before, I refer to the provisions of Criminal Procedure Code, very briefly, the settled position in law in respect of interpretation of statute will have to be taken into consideration. 9 It is quite well settled that, normally, courts are supposed to give effect to the plain meaning to the words appearing in sections and provisions of the Act. However, in case of ambiguity and if a doubt arises in the mind of the court as to whether the provision is mandatory or directory, the Apex Court has laid down various guidelines for the purpose of determination of the said question. It is, however, well settled that there is no universal rule or strait jacket formula for the purpose of coming to the conclusion whether the word or wording of the provisions has to be construed as mandatory or directory and, for that purpose, the court has to take into consideration the relevant word or wording of the said provision as also the other provisions of the Act as also various judgments of the Apex Court ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the complaint laid down in section 190 of the Criminal Procedure Code. After the complaint is filed, the Magistrate has to examine the complainant and his witnesses. Section 200 of the Criminal Procedure Code lays down the procedure of examination of the complainant and his witnesses. Section 200 of the Cr.P.C reads as under:- "200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witness....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200." The said amendment was pursuant to the recommendation made by the Law Commission in its 41st report. The amendment with which we are now concerned pertains to insertion of following words viz. "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction". It would be relevant to consider the objects and reasons of this amendment and, in a nutshell, the said amendment was made since it was felt that false complaints were filed against the persons residing at far of places only for the purpose of harassing them and in order to see that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 118 and other is section 139. Both these presumptions, however, are rebutable and the accused can rebut these presumptions either by leading evidence or by cross-examining the complainant and his witnesses. In view of the initial presumption under sections 118 and 139 of the Negotiable Instruments Act, task of the complainant in proving the prima facie case becomes very easy. He has to make necessary averments in the complaint for the purpose of establishing ingredients of the offence. Secondly, if he wants the person other than the drawer of the cheque to be made as an accused in the complaint he has to make necessary averments, annex the relevant documents such as bank memo of dishonour, the cheque in question, demand notice, acknowledgment receipt showing proof of service of demand notice. If necessary averments are made in the complaint coupled with the said documents, the Magistrate then can examine the complainant on oath for the purpose of ascertaining truthfulness or otherwise of the averments in the complaint. This procedure can be completed by the Magistrate while following the procedure under section 200 of the Criminal Procedure Code. This being the position, the qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing inquiry by the Magistrate himself since there is no question of inquiry by the police or any other person, would lead to duplication of work and consequently it would prolong and protract the disposal of the case. In a given case, however, the Magistrate, if he finds that necessary material which is to be produced by the complainant has not been brought on record, he may exercise his discretion and postpone the issuance of process and examine legal as well as factual issue and then after holding a further inquiry and after further application of mind may decide whether complaint has to be dismissed under section 203 of the Criminal Procedure Code. In my view, this appears to be the intention of the legislature, particularly because no corresponding amendments have been made by the legislature to other provisions of the Criminal Procedure Code viz sections 460, 461 and 465 of the Criminal Procedure Code. Sections 460 and 461 specifically lay down irregularities which are committed during trial. The said section 460 lays down irregularities which can be cured and section 461 lays down irregularities which cannot be cured. Section 465 specifically starts with non-obstante clause a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns of section 460 to 466 of the Criminal Procedure Code. The said case was heard by Division Bench comprising of K.T. Thomas and M.B. Shah, JJ. In this case, against the order of the High Court, a criminal appeal was filed. The Apex Court, in the said case, while deciding the issue raised in the said criminal appeal was pleased to take into consideration various provisions of the Code of Criminal Procedure and the main question which fell for consideration before the Apex Court in the said case was in respect of interpretation of the proviso to section 202 sub-clause (2). Here in this case, admittedly, the case was committed by the learned Magistrate to the Sessions Court. The Apex Court was called upon to consider the provisions in the proviso to section 202(2), requiring the Magistrate to hold an inquiry in cases exclusively triable by the Sessions Court. While deciding the said issue, M.B. Shah, J. held that the said provision was discretionary and omission to follow it would not vitiate further trial unless it was established that the prejudice was caused to the accused. K.T. Thomas, J., however, held that the provision is mandatory but the omission to follow it by itself would....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... oath, as far as possible the proviso is to be complied with but the mandate is not absolute." After considering the provisions of section 460 and 461 of the Cr.P.C., M.B. Shah, J. has observed, after referring to section 465 that the said interpretation would be in consonance with the said proviso. M.B. Shah, J. has referred to the judgment of the Supreme Court in State of Punjab vs. Shamlal Murari (1976) 1 SCC 719 : 1976 SCC (L&S) 118 and the observation made in para 8 of the said judgment has been quoted. In my view, these observations are relevant for the purpose of deciding the controversy in issue and, therefore, para 19 of the said judgment is also reproduced hereinbelow:- "19. This is also to be considered with the fact that this part of holding an inquiry is a procedural one and for that purpose, it would be proper to refer to the observation made by this Court in State of Punjab v. Shamlal Murari (1976) 1 SCC 719 : 1976 SCC (L&S) 118 (SCC p.722, para 8) "We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the same analogy, therefore, it is observed by M.B. Shah, J. with reference to sections 200, 460 and 461 that the amendment in question will have to be held as directory and not mandatory. He has further observed that though the word "shall" is used in the said proviso, it would still not vitiate the order passed by the Magistrate and it would depend on the time when the objection was raised and whether prejudice was caused to the accused by non-compliance of the order. 17. It is no doubt true that one of the tests for determining the question whether the provision is mandatory or directory is to construe the words preceding imperative word "shall" and if the word "may" is followed by the word "shall" then in such cases, ordinarily it would mean that direction given in the sentence beginning with the word "shall" has to be necessarily complied with. However, that cannot be the only test of interpretation since there is no universal rule regarding interpretation of the provision. 18. In this context, therefore, it would be relevant to refer to the judgments of the other High Courts. The Kerala High Court in Muhammed Basheer v. The State of Kerala CDJ 2008 Ker HC 586 wherein t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of Section 200 of the Code and the Magistrate, in view of amended provision of Section 202, is compelled to postpone issue of process under Section 204 or to dismiss the complaint under Section 203 of the Code. In other words the language of amended provision of Section 202 cannot be read in such a way separating it altogether from the language of Section 200 and Section 203. There is nothing in Section 202 or in the amended provision which controls the language of Section 200 of the Code. The amendment was effected and applies only in cases where the issuance of process against the accused persons are postponed by the learned Magistrate." "72. The language of the original Section using the word 'may' is not changed by the subsequent amendment effected under Act 25 of 2005. The discretion to enter within the purview of Section 202 of the Code still remains with the Magistrate. If the learned Magistrate does not think it fit to enter into an inquiry within the purview of Section 202 of the Code and decide the matter after considering the evidence under Section 200 of the Code then in my view no illegality can be said to have been committed by the learned Magistrate. In o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in case of accused persons, who are residing outside the jurisdiction of the Court." 20. The Madras High Court in Prof. D. Kannammal vs. Tmt. Renuga Palanisamy MANU/TN/9866/2007 in paragraphs 10 and 11 has held that the amended provision contained in section 202(1) may not apply in respect of cases filed for the offence punishable under section 138 of the Negotiable Instruments Act. I am, therefore, fortified in my view by the judgments of Kerala High Court, Calcutta High Court and the Madras High Court. 21 It would also be relevant to take into consideration the observations made by the Apex Court in M/s Mandvi Co-op Bank Ltd. vs. Nimesh B. Thakore 2010 ALL MR (Cri) 599 (S.C.) in relation to proceedings under section 138. Though the issue before the Court was in respect of provisions of section 145 of the Negotiable Instruments Act, the Apex Court took into consideration the provisions of Negotiable Instruments Act for the purpose of interpreting the said provision and has observed in paragraphs 17 and 18 of its judgment as under:- "17. It is not difficult to see that sections 142 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....minal Procedure, 1973 (in short the 'Code') with effect from 23.6.2006 by Central Act 25/2005 it is mandatory on the part of the learned Magistrate to conduct an enquiry under section 202 of the Code. Learned Single Judge noted that the Magistrate had emphasized that he was considering the complaint at the pre-cognizance stage which according to him was not correct. By deciding to examine the complainant and the witnesses under Section 202 of Code, the Magistrate had already taken cognizance of the offence and he was not considering the sworn statements of the witnesses at the pre cognizance stage. Learned Single Judge felt that enquiry was mandatory after 23.6.2006. 3. The legal position is unexceptionable. 4. In the background facts we do not think that any exception can be taken to the transfer as directed by learned Single Judge. The observations regarding the conduct are unnecessary and stand deleted. Learned Single Judge has directed that the Chief Judicial Magistrate shall have discretion to record further sworn statements if necessary in case he decides to take cognizance of the offence. The aforesaid observations and directions are also in order. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is further well settled that a decision is not an authority for a proposition which did not fall for its consideration. It is also a trite law that a point not raised before a court would not be an authority on the said question. In A-One Granites v. State of U.P. (2001) 3 SCC 537 it is stated as follows : (SCC p. 543, para 11) "11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675 and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment" [See also State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139, Arnit Das v. State of Bihar (2000) 5 SCC 488 (SCC para 20), Bhavnagar University v. Palitana Sugar Mills (P) Ltd. (2003) 2 SCC 111, Cement Corpn. of India Ltd. v. Purya (2004) 8 SCC 270, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489 and Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42, See para 42.]" 25. So far as the submissions made by Mr. Amit Desai, the learned Counsel appearing on behalf of the complainant that the provisions of s....