Calcutta High Court mandates preliminary inquiry under Section 202 CrPC before issuing summons, emphasizing procedural correctness.
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The High Court made an important decision about a rule in the Criminal Procedure Code, 1973. This rule is called Section 202, and it says that before taking legal action against someone who lives outside the local area of the judge, there must be a preliminary inquiry. The decision was made by a single judge, Justice Rai Chattopadhyay.
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In 1989, someone saw an ad in The Statesman and decided to invest money in a company called M/s. Everest, also giving an unsecured loan to Sencose. After making an agreement in 1991, the investor accused the companies of tricking them and engaging in illegal activities, such as transferring fixed deposits and company shares. This led to significant financial losses and misuse of funds.
The companies and their directors were accused of unlawfully taking valuable securities and moving money. As a result, a legal battle ensued, and the matter ended up in criminal revision cases. The companies and directors challenged the complaint filed against them under different sections of the Penal Code, 1860.
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The main argument from the petitioners was that the magistrate didn’t properly investigate the case under Section 202 of the CrPC before issuing legal orders, making those orders illegal. The opposition, however, argued that the magistrate had indeed looked into the authenticity of the complaint adequately, supporting the legality of the issued process.
Justice Chattopadhyay pointed out that the magistrate’s orders did not explicitly follow Section 202, which requires a preliminary inquiry in cases where the accused live beyond the magistrate’s jurisdiction.
The court highlighted the legislative intent behind this provision, stating,
“when the legislature provides for a mandate for the Magistrate to postpone the process for the purpose of causing inquiry and with a specific purpose, as written herein above, it is incumbent that the orders of the Magistrate explicitly show that the statutorily provided and mandated process has been undertaken by him.”
The court further elaborated that it is expected of the magistrate to record his findings from the inquiry vis-à-vis the purpose of the said legal provision. Any deviation from this mandated process was deemed by the court as not a due exercise of the power vested by law, rendering the magistrate’s actions “dehors the law and not sustainable” i.e. means actions or decisions that are beyond the scope of the law and cannot be maintained or upheld.
The decision of the High Court to set aside the magistrate’s orders, owing to the absence of a mandatory inquiry under Section 202 of the CrPC prior to issuing summons, underscores the judiciary’s steadfast commitment to upholding the principles of the rule of law and procedural propriety. The case has been remitted to the magistrate, accompanied by explicit directives to undertake the requisite inquiry in accordance with legal provisions before advancing any further in the proceedings.
All about Section 202 of the CrPC (Code of Criminal Procedure)–
- A Magistrate can delay legal action against an accused upon receiving a complaint.
- If the accused resides outside the magistrate’s jurisdiction, an inquiry may be initiated.
- The magistrate can personally investigate or assign a police officer for the inquiry.
- No investigation direction in cases exclusively triable by the Court of Sessions or without oath examination.
- During inquiry, the magistrate can take evidence on oath.
- Non-police officer conducting investigation has similar powers as a police officer, excluding the power to arrest without a warrant.
The importance of Section 202 of the CrPC, emphasizing that it is mandatory. It also serves as a warning to magistrates and legal practitioners to follow procedural rules.
