Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Shiv Jatia v. Gian Chand Malick & Ors., has held that once the Magistrate has called for the police report under Section 202 of the Criminal Procedure Code, 1973 (CrPC), then the magistrate couldn't issue a summon unless the report is submitted by the police.

What was the Background of Shiv Jatia v. Gian Chand Malick & Ors. Case?

• In this case, the Appellant is a Gas Supplier Company, whereas the Respondent is a Distributor Gas Company.
• The magistrate had issued summons to the appellant against the complaint lodged by the respondent who alleged that the appellant who had committed a breach of trust by not refunding the security deposit and not accepting the empty cylinders from respondent.
• The appellant alleged that the magistrate's summoning order was completely illegal.
• According to the appellant, the plain reading of the complaint discovers that there is no allegation against the appellant about the commission or omission of any acts which constitute any offence.
• As per the appellant, a report under Section 202 of CrPC was never submitted by the police.
• The High Court of Punjab and Haryana at Chandigarh quashed the complaint.
• Thereafter, an appeal was filed before the Supreme Court which was later allowed by the Court.

What were the Court’s Observations?

• The Bench comprising of Justices Abhay S. Oka and Ujjal Bhuyan observed that the Magistrate cannot issue process to the accused without application of mind and ought to have waited to issue process against the accused until the report was received from the police.
• The Court also held that after recording the evidence of witnesses and perusing the documents on record, the learned Magistrate passed the order calling for the report under Section 202 of the CrPC. He postponed the issue of the process. The learned Magistrate ought to have waited until the report was received.
• The Court further restated that the Magistrate cannot issue the summons until there is satisfaction that the material was sufficient to pass the summoning order.

What is Section 202 of CrPC?

About:

• Section 202 of CrPC deals with the postponement of the issue of process on the part of the Magistrate. It states that -

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

Provided that no such direction for investigation shall be made -

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

Essential Elements of Section 202 of CrPC:

• Section 202 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 the case of Vadilal Panchal v. Dattaraya Dulaji Ghadigaonker and Anr.(1960), the Supreme Court held that the objective of Section 202 of CrPC is to determine the nature of the complaint for the purpose of justifying the issue of the process.