TaxTMI 
TaxTMI 
2020 (2) TMI 1740
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....1 as complainant had lodged the aforesaid complaint 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 ag....
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....red the entire proceeding non-est in law. 6. Elaborating on his submission, the learned counsel has contended that no part of the 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....
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....mitted that in the meantime, 7(seven) witness have been examined out of which, 5(five) witness are Bank Officers coming from faraway place. The conduct of 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 cite....
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....able 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 (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." "...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....
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....isdiction". There is vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the 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 ....
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.... pure legal issue can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter (See: National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad.)" 17. Though the decision of the Hon'ble Supreme Court in the case of Rosy (supra) has been pressed into service by the learned counsel for the complainant, this Court is of the opinion that the decision rendered in that case being prior to the amendment of 2005, the ratio would not be applicable and rather the ratio laid down by the Hon'ble Supreme Court in the case of Abhjit Pawar (Supra), which is post amendment and specifically on Section 202 of the Cr.P.C. is rather applicable. The argument that procedural law should not obstruct justice as advanced on behalf of the complainant, would not be applicable in the instant case, inasmuch as, the provision of Section 202 of the Cr.P.C. has been held to be mandatory in nature. The recourse taken by the complainant upon Section 465 of the Cr.P.C., would also not be of any assistance, inasmuch as, the Section started with a condition "subject to the provisions hereinbefore". In any case violation of a mandatory provision cannot be termed as a m....