A number of cases under Negotiable Instruments (NI) Act, 1881 came up for review with Calcutta High Court to determine whether compliance with Section 202 CrPC is mandatory in cases of dishonour of cheques. It was decided that it is not necessary to comply with Section 202 CrPC in such cases.
Facts of the case
Section 202 CrPC is a process that prevents unnecessary harassment of innocent persons falsely accused of cheque frauds. It allows a magistrate or an investigative officer under the direction of the magistrate to determine whether any crime was committed by the accused before initiating criminal proceedings. It prevents false complainants with malicious intent to implicate an innocent person as well as saves time and effort on behalf of the Court. After the 2005 amendment to the CrPC, it became mandatory to initiate the process under Section 202 especially for persons residing beyond the territorial jurisdiction of the trial magistrate.
In the present petition, it was alleged that the magistrate has subverted the rule of law by taking cognizance of a case and started proceedings under Section 204 CrPC without going through the order of the process by determining the validity of the complaint under Section 202 CrPC as is the norm. The petitioner alleged malpractice and requested that all proceedings of the said case be quashed under Section 482 CrPC for wrongful trial proceedings as followed by the magistrate of the trial court.
Questions placed before the Court
Regarding the mandatory use of Section 202 CrPC before the commencement of trial in criminal proceedings, five questions were raised in front of the Honourable Court to decide.
- Whether the amended Section 202, CrPC would apply to cases involving offences punishable under Negotiable Instruments Act, 1881
- Whether the use of Section 202 CrPC is mandatory before the trial starts
- What is the nature of inquiry under Section 202, CrPC
- Whether non-compliance with Section 202 CrPC vitiates the order of process issued
- Whether any objections regarding non-compliance with Section 202 CrPC should only be raised at the initial stages of the trial proceedings.
A Division Bench of the Calcutta High Court comprising Justices Debasish Kar Gupta and Shekhar B Saraf passed the judgment to the requirement and use of Section 202 CrPC in court proceedings. The review petition was presented in front of the Honourable Court to decide whether or not compliance with Section 202 was mandatory in dishonour of cheques cases punishable under Section 138/141 of the NI Act.
The judges placed reliance on the N Harihara Krishnan v J Thomas case and observed that the scheme of prosecuting in NI Act case is different than in CrPC. The non-obstante clauses in the provisions of the NI Act were placed in order to exclude the provisions of the CrPC. The Court held, “the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigours of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. Furthermore, in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.”
Placing reliance on National Bank of Oman v Barakara Abdul Aziz case Calcutta High Court decided that it is essential to begin enquiry under Section 202 CrPC especially if the accused is not a resident within the territorial jurisdiction of the concerned magistrate. The Court further observed that the nature of enquiry under Section 202 CrPC is such so as to prevent any undue harassment and to ward off false complaints against persons residing at far off places beyond the territorial jurisdiction of the concerned magistrate.
The judges found that there was no ground for quashing the case as per the provisions of Section 482 CrPC only because proceedings under Section 202 CrPC was not followed as precedent dictates that in such instances matter should be remitted back to the lower court so that fresh order in compliance with Section 202 could be issued, but it is not necessary to do so in the present case as it is being processed under NI Act in which the scheme of prosecuting is different than in CrPC as was held in N Harihara Krishnan v J Thomas (supra) case. The Court explained that is necessary to make any objections regarding non-compliance with Section 202 CrPC at the beginning of the trial process keeping in mind the provisions of Section 465 CrPC which categorically states that if an aggrieved party has any objections on any technical ground it is necessary that he must raise the objection thereof at the earliest stage, otherwise “he cannot be heard on that aspect after the whole trial is over or even at a later stage” was the verdict held in this case.
Verdict on the case
The judges found no grounds for complaint in this case and decided that no rule of law was broken by the magistrate for opting to start proceedings under Section 204 CrPC. But in case there was any merit to the objections raised by the petitioner he has the right to seek remedy as per the provisions of Section 482 CrPC. The Division Bench ruled that the proceedings initiated at the lower court were made in accordance with the provisions of the law and there was no merit in the review petition. It is not mandatory to invoke Section 202 CrPC in cases being prosecuted under NI Act.