TaxTMI 
TaxTMI 
2020 (2) TMI 1740
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....before the learned Court below, in which, amongst others, the present petitioners are accused. It is an admitted fact that the present petitioners who have been arrayed as accused Nos. 3 & 5 are residents of Azara in the District of Kamrup (M) in the State of Assam. The complaint has been lodged under Sections 120(B)/406/420/34 of the IPC. Though the details of the allegations are not necessary to be narrated, the complainant had alleged that an amount of Rs. 35,65,500/- was taken from her by the accused for the consideration of allotting a petrol pump in her name in the East Siang District. However, after parting with the money, nothing was done and accordingly, the compliant was lodged. (ii). The learned Magistrate vide order dated 02.05.2017 after examining the complaint under Section 200 of the Cr.P.C. and on perusal of the complaint petition, had issued summons against the accused persons for appearance. Since the validity of the aforesaid order is the subject matter of the present petition, the said order is extracted, herein, below: "02.05.2017 This complaint is filed by Ms. Odi Jerang against six persons namely Sh. Utpal Gogoi, Sh. Nutam Goswami, Sh. Nabajyoti Barua....
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....he transaction which is the subject matter of allegation has occurred under the territorial jurisdiction of Yupia and the alleged payment was made from Pasighat to the Bank accounts of the petitioners at Guwahati, therefore, under no circumstance, the complaint could have been entertained. On the second ground of challenge, it is submitted that the provisions of Section 202 of the Cr.P.C. is mandatory and ambiguity, if any, has been done away with by the amendment of 2005 by which "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" has been inserted. It is submitted under Section 202 of the Cr.P.C., a Magistrate before issuing process in case of an accused residing outside his jurisdiction is required to postpone the process and enquire into the case himself or direct an investigation for the purpose of deciding as to whether or not there is sufficient ground for proceeding. It is submitted that the legislature in its wisdom had incorporated the said provision to avoid undue harassment to any person who is impleaded as an accused and resides outside the jurisdiction of the Court. He further submits that incorporatio....
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....the petitioners have been severely criticised by submitting that the petitioners have opted to cross-examine the witnesses of the complaint in the process of evidence before charge and therefore, it would be too late in the day to raise such objection on Section 202 of the Cr.P.C. 9. Shri R. Sonar, learned counsel has categorically submitted that Section 202 of the Cr.P.C. is procedural law and the same should not be interpreted to obstruct dispensation of substantial justice. He has also taken this Court to the provisions of Section 465 of the Cr.P.C. which lays down that no order of competent Court shall be reversed only because of certain technical error. In support of his submission, Shri Sonar, the learned counsel has relied upon the following decisions: (i). (2001) 7 SCC 679 (State of Madhya Pradesh Vs. Bhooraji & Ors.). (ii).(2000) 2 SCC 230 (Rosy & Ors. Vs. State of Kerala & Ors.) (iii).2010 7 SCC 578 (Shivjee Singh Vs. Nagendra Tiwary & Ors.) 10. The case of Bhooraji (supra) has been cited to buttress the argument that under Section 465 of the Cr.P.C., technical irregularity would not vitiate an order, more so, when the present petitioners are already contesting th....
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....cer, 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." "...465. Finding or sentence when reversible by reason of error, omission irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 15. The object o....
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....e Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. 24. The essence and purpose of this amendment has been captured by this Court in Vijay Dhanuka v. Najima Mamtaj in the following words: (SCC P. 644, Paras 11-12) "11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process 'in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. 12. The words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" was inserted by Section 19 of Code of Criminal Procedure (Amendme....