14.09.2026 D/L.5 Ct. No.34 Saikat Mukherjee CRR/4714/2023 GADADHAR MUKHERJEE AND ORS. VS. PUSHPITA BANERJEE In Re: An Application under section 482 read with 397 of the Code of Criminal Procedure, 1973. Mr. Soumyajit Das Mahapatra, Adv. Mr. Palash Bapari, Adv. Mr. Madhurai Sinha, Adv. Ms. Upasana Banerjee, Adv. Mr. bisal Roy, Adv. …For the Petitioners Mr. Apalak Basu, Adv. Ms. Sanghamitra Mridha, Adv. ...For the Opposite Party 1. This revisional application has been filed for quashing the impugned proceeding being C.R. Case No.295/2022 pending before the court of learned Judicial Magistrate, 4th Court, Serampore, Hooghly, on the ground that no compliance of section 202 Cr.P.C. has been made by the learned Magistrate. 2. At the very outset, learned advocate representing the petitioners submits that he is not willing to press for quashing of the impugned proceeding and prays for remitting back the matter to comply with the mandatory provision as envisaged under section 202 Cr.P.C. 3. It is submitted by the learned advocate appearing for the petitioners that petitioners are permanent residents of Purba Bardhaman. The opposite party is the mother-in-law of petitioner no.3. On August 24, 2022, one petition of complaint under section 200 Cr.P.C. was filed 2 before the learned Additional Chief Judicial Magistrate, Serampore, Hooghly, against the petitioners, that is, the family members of petitioner no.3 with an allegation that petitioner no.3 allegedly was a woman having high ambition and demanded valuable gifts and on February 26, 2022, she left her matrimonial house and she did not return again. It was alleged that the opposite party and her son did not allow the petitioner no.3 to meet her minor daughter. Several other proceedings are pending between the parties. 4. It was further alleged that on July 12, 2022 and August 6, 2022, the son of opposite party was threatened over telephone to deposit Rs.50 lakhs to get rid of the domestic violence cases. The learned Additional Chief Judicial Magistrate, Serampore, Hooghly, took cognizance of offences on 24th August, 2022 and on the same date the cognizance of offences were taken under sections 323/341/354/506/34 of IPC and it was transferred to the Court of learned Judicial Magistrate, 4th Court, Serampore, Hooghly. The learned transferee Court examined the complainant/opposite party on October 19, 2022, under section 200 Cr.P.C. and he passed an order issuing Process against the petitioners for the proceeding under section 323/506/504/341/34 of IPC. 5. The learned advocate for the petitioners further draws attention of this Court to the fact that a criminal revisional application challenging the order dated October 19, 2022, was filed, which was dismissed by an order dated October 3, 2023, passed by learned Additional Sessions Judge, 2nd Court, Hooghly. The previous revisional application also got dismissed. It is further case of the petitioners that warrants were issued against the petitioners on 3 October 5, 2023, and they surrendered before the learned Court below on October 7, 2023, and obtained bail. 6. It is the specific case of the petitioners that when admittedly present petitioners are the residents of Purba Bardhaman and the complaint was lodged before the concerned Court at Hooghly, it was mandatory on the part of the learned Magistrate to make an enquiry under section 202 of Cr.P.C. which is admittedly not done as can be found from the orders passed by the learned Court. The learned Court examined the complainant and took cognizance without making proper enquiry which de hors a purpose of incorporating section 202 in the Code of Criminal Procedure. Learned advocate for the petitioners in this regard places reliance upon the decision in Birla Corporation Ltd. vs. Adventz Investments and Holdings Ltd., reported in 2019 (16) SCC 610. 7. Per contra, learned advocate representing the opposite party raises objection and it is submitted that learned Magistrate after going through the materials on record took cognizance under section 190(i)(a) of Cr.P.C. and also examined the de facto complainant under section 200 Cr.P.C. and that itself substantial compliance of section 202 Cr.P.C. In addition, this is the second revisional application preferred by the petitioners and if the same is entertained may cause delay in the proceeding with the matter pending before the learned Magistrate. 8. Heard the submissions, perused the materials on record. 9. The instant complaint was filed under section 200 Cr.P.C. in respect of an incident happened on May 14, 2022, before the learned Court of learned Additional Chief Judicial Magistrate, Serampore, Hooghly. The learned Magistrate on August 24, 2022, perused the petition of 4 complaint and took cognizance under section 190(i)(a) of Cr.P.C. After that, the case was transferred on October 19, 2022, when the date was fixed for examination on S.A. before the learned Judicial Magistrate, 4th Court, Serampore, Hooghly. The de facto complainant appeared and she was examined under section 200 Cr.P.C. Learned Magistrate heard the learned advocate on behalf of the complainant and considering the testimony of the complainant found sufficient ground to proceed with the case and accordingly, directed to issue summon. It is the case of the petitioners, when it is evident that the accused persons are not residents of the jurisdiction of concerned Court, it was mandatory on the part of the learned Magistrate to enquire under section 202 Cr.P.C. to determine whether a prima facie case is made out. 10. Section 202 CrPC reads as follows; 202. Postponement of issue of process: 1. Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, 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 Sessions; or 5 (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. 2. In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them 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. 11. Under the amended sub-section (1) to Section 202 Cr.P.C. (as amended by Cr.P.C. (Amendment) Act, 2005, with effect from 23.6.2006), it is obligatory upon the Magistrate that before summoning an accused, who is residing beyond its jurisdiction, to conduct an enquiry, However, the Magistrate has discretion to opt any of the three options available to him to conduct such enquiry. a) he may enquire into the case himself or; b) direct the investigation to be made by a police officer or; c) by such other person as he thinks fit. The object of such enquiry is to find out whether or not there is sufficient ground for proceedings against the accused. 12. The Apex Court in the case of Vijay Dhanuka and Others v. Najima Mamtaj and Others (2014) 14 SCC 638, considering the scope of amendment to Section 202 Cr.P.C., has held as under:- “12. ….The use of the expression “shall” prima facie makes the inquiry 6 or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” Since the amendment is aimed to prevent persons residing outside the jurisdiction of the court from being harassed, it was reiterated that holding of enquiry is mandatory. 13. It has been reiterated by the Hon’ble Supreme Court in a number of decisions that before issuance of Process which is a serious matter, the learned Magistrate prima facie must be satisfied about existence of an offence alleged to have committed by the accused on the available materials. It was held in the case of Birla Corporation Limited (supra) “…….Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also 7 causes humiliation and disrepute in the society. It results in anxiety of uncertain times.” 14. Therefore as it can be found from the provision itself and subsequently after amendment sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused but such exercise is absolutely absent in the order impugned . No enquiry is done in terms of section 202 Cr.P.C. when in the complaint itself lodged before the Court contains the addresses of the petitioners. It is clear from the complaint lodged before the Court of Serampore in the District Hooghly when the residential addresses of the petitioners were admitted to be of the District at Purba Bardhaman.Hence the mandatory provision has not been complied with . 15. Considering the entire facts and circumstances this Court is of the view that proper recourse would be as settled to relegate the matter for making necessary inquiry in accordance with the provisions of the law as made under section 202 Cr.P.C. corresponding to section 225 BNSS after following the due process of law within a period of two months from the date of communication of the server copy of this order. 16. It is, however, made clear that this Court has not gone into the meritss of the case. Accordingly, the learned Magistrate will proceed with the case considering the facts and circumstances of the case 8 without being influenced by any of the observations made by this Court, if any. 17. Hence, CRR 4714 of 2023 stands allowed in part and disposed of. 18. Pending applications are also disposed of. 19. Urgent Photostat certified copy of this order, if applied for, be given to the parties, on priority basis, upon compliance of all necessary formalities. 20. Parties are directed to act on the server copies of this order duly uploaded from the official website of this Hon’ble Court. [Chaitali Chatterjee (Das), J.]