Section 202 of the CrPC empowers the magistrate to postpone the process of trial in order to conduct a preliminary enquiry for discerning whether an offence is made out. The purpose of this provisions is to look into cases involving false complaints. This enquiry can be conducted either by the magistrate himself, or by an investigating officer tasked by the magistrate. The 2005 amendment to Section 202 states that a magistrate “shall” conduct an enquiry wherein the accused is residing beyond the territorial jurisdiction of the magistrate. The application of this provision was, however, challenged and thereafter referred to the Division Bench of the Calcutta High Court which concluded with its findings and reasoning accordingly.
In the Criminal Revision Petition filed before the Calcutta High Court, the facts of the dispute were that the accused challenged the process initiated against them under Section 204 contending that there was no inquiry conducted by the magistrate under Section 202 of CrPC. The Bench comprising of Justice Debasish Kar Gupta and Justice Shekhar B Saraf observed that the scheme of prosecution under the Negotiable Instruments Act and the CrPC are different as opined in N Harihara Krishnan Vs J Thomas. Furthermore, the provisions of the NI Act were constructed to exclude the provisions of the CrPC. This was evident from the non-obstante clauses in the provisions of the NI Act. It was also pointed out that the N.I Act already contains provisions which are similar to the object of Section 202 of CrPC. The Court elaborated on its reasoning as follows:
“In view of the above and taking into consideration the non-obstante clauses used in Sections 142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage.”
Therefore, the Court concluded that the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) in cases falling under Section 138 read with Section 141 of the NI Act.
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Judgment: Calcutta HC Judgment Dated 03-05-2018