TaxTMI 
TaxTMI 
2009 (2) TMI 875
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....471/477A and 201 of the Indian Penal Code against eight persons including the company. 3. Fact of the case on which the aforementioned complaint case was initiated is not relevant for the purpose of present discussion, save and except, that some of the accused persons as mentioned in the petition of complaint, are residents which falls outside for jurisdiction of the learned Chief Metropolitan Magistrate, Calcutta before whom the complaint was instituted. 4. The learned Chief Metropolitan Magistrate on consideration of evidence recorded under Section 200 of the Code directed issuance of process against all the accused persons as arrayed in the petition of complaint. After directing issuance of process, learned Chief Metropolitan Magistrate transferred the aforementioned case to the file of learned Metropolitan Magistrate, 12th Court for proceeding further with the aforementioned case. 5. In the mean time, three petitioners namely Sushil Kumar Daga (arrayed as accused No. 2 in the petition of complaint), Krishna Damani (arrayed as accused No. 3 in the petition of complaint) and Umesh Verma (arrayed as accused No. 6 in the petition of complaint), moved a revisional applicati....
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.... (2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses 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 (i) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station, except the power to arrest without warrant. 9. The relevant amendment to Section 202 of the Code was introduced by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) and the following lines were introduced which is set out below: and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction. 10. Learned Advocate General during the course of his argument contended that the word 'shall' as separately, de hors of the entire context and scheme of the other provision of the Code and the interpretation of the amended provision is requ....
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....he Hon'ble Supreme Court in connection with a case under the provisions of Bombay Industrial Relations Act and the Employees State Insurance Act held that the word 'shall' does not always denote mandatory character. At para 16 of the aforementioned decision the Hon'ble Supreme Court held, which is set out below: 16. Much emphasis has been laid by Mr. Gupta that the expression used in the opening words of Section 78(1) is 'shall' and that there is no indication in Sub-clause (1) of Clause (d) enabling a Labour Court to take into account any other extraneous matters. According to the learned Counsel the use of the expression 'shall' coupled with the clear wording of Sub-clause (1) of Clause (d), clearly shows that the provisions are mandatory and not directory. It must be stated that a very superficial reading of Sub-clause (1) of Clause (d) may support the contention of Mr. Gupta. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to be served by the Act i....
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.... to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. A valuable guide for ascertaining the intention of the Legislature is found in Maxwell on the Interpretation of Statutes, 10th Edn., atp.381 and it is: On the other hand, where the prescriptions of a statute relate to the performance of public duty and where the Invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. This passage was accepted by the Judicial Committee of the Privy Council in the case of Montreal Street Railway Co. v. Normandin and by this Court in State of U.P. v. Manbodhan Lal Srivastage. 14. In Jaswant Singh Mathura Singh and Anr. v. Ahmedabad Municipal Corpo....
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....Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh AIR 1960 SC 444 (supra), three Judge Bench of Hon'ble Supreme Court while interpreting the provisions of Oudh Estates Act held at para 20, which is set out below: 20. The question then is, is Section 56 imperative? In our view, it is not. It, no doubt, says that "the Court of wards shall appoint...a representative". But it is well-known that the use of the word "shall" is not conclusive of the question whether a provision is mandatory: see Hari Vishnu Kamath v. Syed Ahmad Ishaque. The intention of the legislature has to be gathered from the whole stature. 18. In Owners and Parties Interested in M.V. "Vali Pero" v. Fernandeo Lopez and Ors. AIR 1989 SC 2206 (supra), three Judge Bench of Hon'ble Supreme Court while interpreting Calcutta High Court Rules, 1914, particularly in connection with Rule 4 under Chapter XXII of the aforesaid Rules, in which omission took place to record the signature of the witnesses in violation of the Rule 4, held as follows: The consequence of failure to comply with any requirement of Rule 4 ibid is not provided by the stature itself. Accordingly, the consequence has td b....
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....ng the provision of Haryapa Urban (Control of Rent and Eviction) Act, 1973 and the Rules framed thereunder held at para 31 of the aforesaid decision, which is set out below: 31. The word 'shall' used its ordinary import is obligatory. Nevertheless, the word 'shall' need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to be context, subject matter and object of the statute in question. 21. In the State of Punjab and Anr. v. Shamlal Murari and Anr. AIR 1976 SC 1177 (supra), Two Judge Bench of Hon'ble Supreme Court while considering the noncompliance of Rule about the supply of requisite particular number of copies in connection with Punjab and Haryana High Court Rules held at para 8 of the aforesaid decision, which is set out below: 8. It is obvious that even taking a stern view, every minor detail in Rule 3 cannot carry a compulsory or imperative import. After all wha....
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....West Bengal (supra) is a judgment delivered by me in connection with the aforementioned case. Even though, on earlier occasion I considered the scope of amended provision of Section 202 of the Code of Criminal Procedure but I must frankly observe that issue on earlier occasion was somewhat different as the order directing enquiry under the amended provision of Section 202 was, the subject matter of challenge and the decision was given mainly in context of the subject matter. The entire scope of Section 202 vis-a-vis the amended provision was not taken into consideration by me in the earlier decision. 23. In A.R. Antulay v. Ramdas Sriniwas Nayak and Ors. 1984 Cri LJ 647 (supra), Five Judges Bench of Hon'ble Supreme Court while considering the scope of the provisions of Criminal Law Amendment Act, 1952 and while upholding the decision of High Court that a private complaint in-connection with the offence falling under the amended Act is maintainable, made the following observation which In my view is very relevant for the purpose of present discussion: Punishment of the offender in the Interest of the society being one of the objects behind penal statutes enacted for l....
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....onnection with criminal reference held that the learned Magistrate's not competent to refuse to take cognizance of an offence on receipt of a complaint of facts constituting an offence, but he is rather bound to examine the complainant. He can then proceed to issue summons on the accused or to order an enquiry under Section 202 or to dismiss the complaint under Section 203. 26. In Bhinka and Ors. v. Charan Singh 1959 Cri LJ 1223 (supra). Three Judges Bench of Hon'ble Supreme Court in connection with interpretation of statute, held at para 15: The headings prefixed to Sections or sets of Sections in some modern statures are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps the Court to resolve that doubt. 27. In Martins v. Fower (supra), the Privy Council while considering the scope of Section 39 of the Marriage Ordinance, 1884 (Laws of Southern Nigeria) held that the construction was supported by a consideration of the headings to the sections, which might be regarded as preambles ....
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....lcutta Municipal Corporation and Calcutta Metropolitan area. 32. It is further contended that several decisions of Supreme Court as referred to by learned Advocate General indicate that while interpreting statute the Court is required to consider the entire scope of the provision specially in connection with other provisions of the Code. Mere interpretation of the word 'shall' and then to decide that the word by itself indicates the obligation on the part of the Court may defeat the very purpose for which the Clause is introduced. 33. Shri Pradip Ghosh, learned Senior Counsel appearing for the Opposite Parties submitted in support of the order under challenge passed by the learned Chief Judge, City Sessions Court. 34. Learned Senior Counsel for the Opposite Parties also filed written argument and referred to various decisions in support of his contention: 1. State of Uttar Pradesh v. Radhey Shyam Nigam and Ors. reported in (1989) 1 Supreme Court Cases 591 : AIR 1989 SC 682. 2. Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. Reported in (1987) 2 Supreme Court Cases 707 : AIR 1987 SC 1668. 3. D.R. Fraser and Co. Ltd. v. The Minis....
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....d Ors. AIR 1949 PC 120 (supra), the Three Judges Bench of Hon'ble Supreme Court while interpreting the word 'may' and 'shall' appearing in Sub-section (3) of Section 17(III)(b) in U.P. Krishi Utpadan Mandi Adhiniyam, 1964 held at para 9, which is set out below: 9. It is significant to note that the word used for the seller to realise market fee from his purchaser is "may" while the word used for the seller to pay the market fee to the committee is "shall". Employment of the said two monosyllables of great jurisprudential import in the same Clause dealing with two fights regarding the same burden must have two different imports. The legislative intendment can easily be discerned from the frame of the Sub-clause that what is conferred on the seller is only an option to collect market fee from his purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realised it from the purchaser or not. 39. In Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu S....
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.... Government the State Industrial Court or a District Industrial Court "shall" decide the question of legality of the strike or lockout, it "may" decide the question on an application by the employer or employee or any other person mentioned in the section. The use of the word "shall" in connection with the action to be taken on a reference by the State Government and "may" in connection with the action on an application by others in the same Section compel the conclusion that on an application by anybody other than the State Government, the State Industrial Court or a district Industrial Court may also refuse to take action. The suggested construction of the words "rendered illegal" as "held illegal" might therefore have the curious result that even though the strike is in fact illegal within the meaning of Section 40 of the Act no action can at any time be taken against an employee for participation in it. We have accordingly come to the conclusion that the words "rendered illegal" does not mean "held illegal" and the employer is free to take action against the employee as soon as he thinks that the strike in which he has participated comes within the provisions of Section 40 of t....
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....gistrate. 51. The word 'complaint' is defined under Clause (d) to Section 2 of the Code which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 52. In terms of provision under Section 190(1)(a) of the Code, the Magistrate is required to take cognizance on the petition of complaint. It is evident from the combined reading of Section 2(d) of the Code read with Section 190(1)(a) of the Code that on receipt of the complaint the Magistrate is required to take cognizance in order to ascertain whether the recital in the petition of complaint discloses commission of offence by persons whether known or unknown. 53. Section 200 to Section 203 falls under Chapter XV which deals with the procedure as to how a complaint presented before the Magistrate and on which cognizance is taking by the Magistrate shall be dealt with by him. 54. Section 200 of the Code prescribed that Magistrate taking cognizance shall examine upon oath the complainant and the witnesses present. Such examination may be dispensed in ca....
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....egislature is to accord some protection to the persons who are residing at far off places whereby he is dragged into criminal cases in order to harass. While interpreting the provision of Section 202, the object "which, was taken into consideration by the legislature may not be overlooked. No doubt if casts an obligation on the part of the Magistrate to conduct necessary inquiry in cases where he finds that all or any of the accused persons are residing outside the jurisdiction of the Court. 61. The question now arises whether the amendment by itself makes it obligatory on the part of the Magistrate to enter into the field of Section 202, even if, he is satisfied after examination of complainant and his witnesses in terms of provision under Section 200 of the Code that a prima facie case is made out against the accused persons. It may be pointed out that subjective satisfaction on the part of the learned Magistrate about prima facie case to call upon the accused persons to face trial. At this stage the Magistrate is not required to examine, whether evidence is sufficient to convict the accused. 62. Careful perusal of the language appearing under Section 202 vis-a-vis Section ....
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....ion is to inquire into and try offences committed by person or persons provided the same has taken place within his territorial jurisdiction. The limit as to territorial jurisdiction of the Magistrate in my view does not restrict him to proceed with the case provided he has jurisdiction over the subject-matter of the offence. In this connection, if one looks into the language of the Section 462 of the Code, it would be seen that proceeding in wrong place cannot be a ground to set aside any finding, sentence or order of any Criminal Court save and except in cases where such error has occasioned a failure of justice. 68. So far as the present matter is concerned, the question as to lack of territorial jurisdiction of the learned Magistrate in connection with the offence does not arise. Here again the question is the special protection given to the accused persons residing outside the jurisdiction of the Code consequent to amendment of Section 202. 69. The language of Section 202 as amended cannot be stretched or extended to such a degree which in its turn may defeat the very purpose for which Chapter XV of the Code is incorporated. There is nothing to show in the language of Se....
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....h compulsion on the part of the Magistrate to conduct further inquiry under Section 202 even though, he is satisfied about the fate of the complaint case after examining the complainant and witness under Section 200 of the Code. 74. The legal position as highlighted above is clearly indicative that postponement of issue of process under Section 202 is not compulsory and still remains at the discretion of the Magistrate. 75. It may be pointed out in this context that Section 202 prescribed procedure. 76. In this connection the observation made by Hon'ble Supreme Court in Sushil Kumar Sen v. State of Bihar reported in AIR 1975 SC 1185 is very relevant. The Hon'ble Supreme Court held, 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 justitiae where the tragic sequel otherwise would be wholly....
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....eration the Magistrate is required to make when he has examined the evidence adduced under Section 200. But if the learned Magistrate is of the view that this is not a fit case to enter into the field of Section 202 of the Code; then the language of Section 202 does not make it obligatory on him to hold further inquiry under Section 202 of the Code. 81. Non-compliance of the procedural law by itself cannot be visited with any consequence unless such consequence is prescribed by the legislature. 82. I have already pointed out that the application of Section 202 is discretionary and when the law has not demanded or make it obligatory on the part of the Magistrate to enter into such inquiry as provided under Section 202 then in my view non-compliance of the same cannot and does not call for any interference. If the learned Magistrate has not exercised his discretion or did not think it necessary to enter into further inquiry in terms of Section 202 then there is no language either in Section 200 or Section 202 which compels him to do so. 83. In this connection I must point out Section 461 of the Code stipulates irregularities which vitiate proceedings. The matter falling unde....