Smti. Jarita Das and Anr v. Smti. Mampi Paul

ORDER Date : 25-04-2023 Heard Mr. Pfosekho Pfotte, learned counsel for the petitioners and Mr. Wati Jamir, learned counsel for the respondent.

¶2This is an application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing of C.R. Case No. 12/2017 under Section 468/471/420/506/34 IPC, 1860 and also assailing the order dated 04.07.2022, passed by the learned Judicial Magistrate (First Class), Dimapur, Nagaland taking cognizance under Section 468/471/420/506/34 IPC and issuing of process.

¶3Bereft of all other facts, the fact in brief for the purpose of this petition is that the complainant has filed a complaint case against the petitioners before the learned Judicial Magistrate (First Class), Dimapur, Nagaland, for commission of offence punishable under Section 468/471/420/506/34 IPC which was registered and numbered as C.R. Case No. 12/2022. The learned Judicial Magistrate (Fist Class), Dimapur, Nagaland, recorded the statement of the complaint under Section 200 CrPC and by Order dated 04.07.2022 took cognizance of the offence under Section 468/471/420/506/34 IPC and issued process of summon upon the petitioners for appearance. Such order is contrary to the provision as stipulated under Section 202 CrPC since the petitioners are Page No.# 3/6 residing in Bokajan, Assam, which is outside the jurisdiction of the learned Court of Judicial Magistrate (First Class), Dimapur. It is noted that the petitioners are residents of Bokajan in the district of Karbianglong, Assam.

¶4The learned counsel for the petitioners submits that on the face of the complaint no offence under Section 468/471/420/506/34 IPC have been committed by the petitioners, and the learned Court below ought to have postponed the issue of process against the petitioners inasmuch as the petitioners are residing in Bokajan, Assam, which is beyond the jurisdiction of the learned Court of Judicial Magistrate (First Class), Dimapur, and as such, the issuing of process against the petitioners is without compliance of the provisions under Section 202 CrPC.

¶5The learned counsel for the petitioner further submits that no cause of action has arisen or has been contemplated within the territorial jurisdiction of the learned Judicial Magistrate (First Class), Dimapur and that the learned Judicial Magistrate (First Class) ought to have either enquired himself or direct investigation by a police officer or any other person as he deem fit. Since this requirement has not been complied with the learned Judicial Magistrate (First Class) has exceeded its jurisdiction in taking cognizance of offence under Section 468/471/420/506/34 IPC. Therefore, he submits that the C.R. Case No. 12/2022 and the cognizance dated 04.07.2022 and its consequential proceedings are liable to be set aside and quashed. The learned counsel for the petitioners relied in the case of National Bank of Oman vs. Barakara Abdul Page No.# 4/6 Aziz and another reported in (2013) 2 SCC 488.

¶6Per contra the learned counsel for the respondent submits that taking cognizance of issuance of process against the petitioners by the learned Judicial Magistrate (First Class), Dimapur, is not a conviction, rather it is an opportunity to defend themselves. The learned Judicial Magistrate (First Class), Dimapur, has acted in consonance with Section 202 CrPC by having been satisfied upon due enquiry to issue process.

¶7The learned counsel for the respondent, further submits that even assuming, though not admitting, that the process had been issued prematurely to the petitioners, such procedural error would not automatically vitiate the criminal complaint itself and prayer for quashing of proceedings of a legitimate criminal complaint on the ground that the learned Trial Court had issued process without conducting enquiry in accordance with 202 CrPC is preposterous and unknown in law. The right approach for such a case would be to cure the defect and proceed in accordance with the procedure laid down by the law.

¶8I have considered the rival submissions advanced by the learned counsel for the parties and also examined the materials available on record.

¶9The issue in the present proceeding is whether the learned Judicial Magistrate (First Class), Dimapur, has complied with the provision of Section 202 CrPC or not and if not whether it is a ground for quashing the complaint case and its consequent proceedings. Page No.# 5/6

¶10In the case of National Bank of Oman (supra) the Hon'ble Supreme Court has held as follows:- " 9. The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the Court

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made our; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.

¶10Section 202 of the Cr.P.C. was amended by the Cr.P.C. (Amendment Act 2005) and the following words were inserted: "and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction" The notes on clauses for the above-mentioned amendment read as follow: "False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." The amendment has come into force w.e.f. 23.6.2006 vide notification No.S.O.923(E) dt. 21.6.2006."

¶11On a careful consideration of the provision of Section 202, CrPC and the materials available on records, and also the Page No.# 6/6 law laid down by the Hon'ble Apex Court as above, it is noted that learned Judicial Magistrate (First Class), before summoning the petitioners has failed to make enquiry into the case as required under the law which is obligatory upon him inasmuch as admittedly the petitioners are residents of Bokajan, Assam, beyond the jurisdiction of the learned Judicial Magistrate (First Class), Dimapur. Therefore, this Court is of the considered view that the mandatory provision of Section 202 CrPC has not been complied with by the learned Judicial Magistrate (First Class), Dimapur, Nagaland, however, such non-compliance may not be a ground to quash the entire proceedings.

¶12In view of above, the order dated 04.07.2022 is hereby set aside. And the matter is remanded back to the learned Judicial Magistrate (First Class), Dimapur, with a direction to pass fresh orders following the provision of Section 202, CrPC. Criminal Petition No. 25/2022 is accordingly disposed of.

Sd/- JUDGE Comparing Assistant

Page No.# 1/6 GAHC020003232022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : Crl. Pet./25/2022 SMTI. JARITA DAS AND ANR W/O SHRI. DILIP DAS NEAR SATSANG TEMPLE PACCA ALI P.O. - BOKAJAN DISTRICT - KARBI ANGLONG ASSAM 2: SMTI. JHUMU DEBNATH W/O LATE DHRUBA DEBNATH NEAR SHIB MANDIR PACCA ALI P.O - BOKAJAN DISTRICT - KARBI ANGLONG ASSAM VERSUS SMTI. MAMPI PAUL W/O SHRI. GOPAL PAUL T.K. COMPLEX LHOMITHI COLONY P.O DIMAPUR DISTRICT - DIMAPUR NAGALAND REPRESENTED BY POWER OF ATTORNEY HOLDER SHRI GOPAL PAUL ------------ Advocate for : P. B. PAUL Advocate for : TONGPOK PONGENER appearing for SMTI. MAMPI PAUL Page No.# 2/6 BEFORE HONBLE MR JUSTICE KARDAK ETE