Source – Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Odi Jerang v. Nabajyoti Baruah & Ors., has observed that the procedure under Section 202(1) of Criminal Procedure Code, 1973 (CrPC), is mandatory when one of the accused is a resident of a place outside the Magistrate’s jurisdiction.

Background

• In this matter, the petitioner is the complainant in a complaint filed under Section 200 of the CrPC.
• The Magistrate issued summons after examining the petitioner under Section 200 of CrPC.
• Thereafter, the accused approached the Gauhati High Court and raised an objection on the ground that though some of the accused were residing at a place beyond the area covered by the jurisdiction of the learned Magistrate, the mandatory requirement of Section 202(1) of CrPC was not followed.
• The HC quashed the order issuing summons and remanded the complaint to the Magistrate to deal with the same from the stage of Section 202 CrPC.
• Thereafter a Special Leave Petition was filed before the Supreme Court by the Petitioner.
• The Apex Court dismissed the Special Leave Petition.

Court’s Observations

• A bench of Justices Abhay S. Oka and Pankaj Mithal observed that the procedure under Section 202(1) of CrPC is mandatory when one of the accused is a resident of a place outside the jurisdiction of the Magistrate.
• The bench further observed that there cannot be any doubt that in view of the use of word "shall" in sub-section 1 of Section 202 of CrPC and the object of amendment made by the Act No. 25 of 2005, the provision will have to be held as mandatory in a case where the accused is residing at a place outside the jurisdiction of the learned Magistrate.

Legal Provisions

Section 200 of CrPC

• Section 200 of CrPC 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 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 over the case for inquiry or trial to another Magistrate under section 192.

Section 202 of CrPC

• 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, 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.