Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Carnival Films Pvt. Ltd. v. State of Kerala has held that the lack of conducting an enquiry under Section 202 of the Criminal Procedure Code, 1973 (CrPC) would not vitiate the process but the lack of an affidavit on record would vitiate the process.

What was the Background of Carnival Films Pvt. Ltd. v. State of Kerala Case?

• In this case, the petitioners are all allegedly residing outside Kerala and are accused 1 to 4 in the files of the Judicial First-Class Magistrate's Court-XII, Thiruvananthapuram for an offence of cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881 (NIA).
• The petitioners have filed the petition before the High Court of Kerala challenging the summons and warrants issued against them without conducting an enquiry under Section 202 of CrPC.
• The Court allowed the petition and quashed the summons and warrants issued against the petitioners.

What were the Court’s Observations?

• Justice Bechu Kurian Thomas observed that in cases arising under the NIA Act, even if an inquiry under section 202 CrPC has not been conducted, the same cannot vitiate the issuance of process. The requisite satisfaction need only be available from the materials on record. If the materials on record are not sufficient to arrive at such a satisfaction, then the accused will be justified in stating that the absence of reference to any affidavit would vitiate the proceedings.

What is Section 202 of CrPC?

About:

• This Section deals with the examination of complainant. It states that—

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—

(a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) If the Magistrate makes the case for inquiry or trial to another Magistrate under section 192.

Provided further that if the Magistrate makes the case over to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Objectives:

• To enable the Magistrate to carefully scrutinize the allegations made in the complaint with a view to prevent a person named therein, as accused, from being called upon to face unnecessary, frivolous or meritless complaint.
• To find out whether there is any material in existence to support the allegations in the complaint.

Essential Elements:

• Section 202 of CrPC comes into play after the Magistrate has taken cognizance of the offence.
• The Magistrate has the power to investigate or direct the police officer to investigate the matter kept for consideration under the complaint that they have received under Section 192 or Section 202 of CrPC.
• Upon receiving a complaint, a magistrate can postpone the issue of summons or the arrest warrant to the accused, and during this time, they can either conduct the inquiry by themselves or direct the police to carry out the investigation.

Case Law:

• In Mohinder Singh v. Gulwant Singh (1992) , the Supreme Court held that the scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any.