ORAL JUDGMENT

These applications were listed before my predecessor and myself for admission. When these applications were listed, learned Senior Counsel appearing for the parties urged that the Code of Criminal Procedure has been amended and as far as instant cases are concerned, an amendment to section 202 of the Cr.P.C., by Cr.P.C. (Amendment) Act, 2005, which has been brought into effect from 23rd June 2006, is in issue. It is urged that a large number of private complaints filed in Mumbai and elsewhere are awaiting a authoritative pronouncement on the amendment and its interpretation. Therefore, before any orders are passed in these applications, they may be permitted to address the Court on the issue as to whether the amendment is mandatory or directory.

2. Their request has been acceded to by me and I have heard Mr.Desai and Mr.Gupte, learned Senior Counsel and Mr.Menon, learned Counsel appearing in support of the plea that the amendment is mandatory whereas Mr.Mundergi and Mr.Jethmalani, learned Senior Counsel urged that the amendment cannot be held to be mandatory. All of them agreed that before the matters are taken up serially for admission, this aspect must be clarified.

3. My attention has been invited to an order passed by this Court in Criminal Writ Petition No.1814 of 2007. A learned Single Judge of this Court (Lordship Mr.Justice Marlapalle) on 28th September 2007, while disposing of that petition, held that the amended scheme of Section 202 of Cr.P.C., mandates that before issuance of process against a person located beyond territorial jurisdiction of the Magistrate concerned, he shall postpone the issue of process against such accused and thereafter, follow the procedure prescribed in the said section. According to learned Senior Counsel appearing on the other side, it is urged that this is not a authoritative pronouncement but a mere expression of opinion and, therefore, this order is not a precedent on the point that amended provision is mandatory. Equally, my attention was invited to an order passed by the Supreme Court in Criminal Appeal No.984 of 2009 (K.T. Joseph Vs. State of Kerala) decided on 8th May 2009 wherein the Honble Supreme Court upheld the order of a learned Single Judge of the Kerala High Court. The learned Single Judge was analysing the amended section 202 of Cr.P.C., and the learned Judges views have been quoted with approval in the Supreme Court order by observing that the legal position as set out in the learned Single Judges order is unexceptionable. Once again it is urged that this order of the Supreme Court does not conclude the controversy. It is still at large. The Court will have to, therefore, give a ruling as to whether the amended section 202 is mandatory or directory.

4. It was urged that several provisions of the Cr.P.C., including section 461 to 465 so also a judgement of the Supreme Court in the case of Rozi and Anr. Vs. State of Kerala, reported in A.I.R. 2000 S.C. 637 have not been brought to the notice of the learned Single Judge of this Court and both sides be given an opportunity to argue and elaborate their respective pleas.

5. Conceding to this request, it was decided that both sides would be heard extensively and, thereafter, the Court would render its decision. Accordingly, I have heard Mr.Desai and Mr.Gupte, learned Senior Counsel. Inviting my attention to the statement of objects and reasons to the Cr.P.C. Amendment Act. 2005, both learned Senior Counsel submitted that the legislature in its wisdom has amended Section 202(1) of Cr.P.C. by inserting words "and shall in a case where the accused is residing at a place....". Both urged that ordinarily the use of these words would indicate that the provision is mandatory. Both of them have urged that whenever the Legislature uses the word "may" and "shall" in the same provision, then, the intent is that the provision is both, mandatory and directory. It is not as if merely because the words "may" have been used in the unamended part that the amendment can be construed as directory. They submit that the intention of the legislature is obvious from the explanatory note. They submit that the note indicates that people residing at far off places and outside jurisdiction of the concerned Magistrate trying the criminal complaints are dragged and harassed endlessly. To avoid any harassment to them, the provision has been amended.

Once the Legislature has inserted this part with this avowed object, then, the intention of the legislature must be given effect to or else the whole purpose would be frustrated and defeated. It is urged that the wisdom of the Legislature in enacting a law or an amendment thereto cannot be questioned by the Court. The court must proceed on the assumption that the legislature is aware of the needs of the people and it is the best Judge for deciding whether there is a requirement of amending a Statute or a section therein. Once, this position is appreciated then, the wisdom of the legislature can never be a subject matter of enquiry. The Court must respect the legislative wisdom and discern the object and intent of the amendment from a plain reading of the same. In the instant case in the very same provision which conferred a discretion on the Magistrate to postpone the issuance of process, the above words have been added by the Amendment. Therefore, it is the plain duty of this Court to give effect to the same and hold that the provision is mandatory.

6. Mr.Desai and Mr.Gupte urged that the amended provision cannot be construed and interpreted with the aid of any other provisions in the Cr.P.C. They urged that it is futile to argue that section 465 finds place in the same code of Cr.P.C. and once such a provision finds place in the same then, the provision in question cannot be construed as mandatory. This is an argument in desperation. They would urge that the Legislature was very much aware of the presence of other provisions including section 465 in the Cr.P.C. Despite being aware of such a provision, the legislature thought it fit to amend section 202 and, therefore, this Court cannot assume that the other provisions were not noticed by the Legislature or its attention was not invited thereto. In these circumstances, they urge that the provision be interpreted as mandatory.

7. On the other hand, Mr.Mundergi, learned Senior Counsel appearing on behalf of the original complainant in one of the cases submits that his client has filed a complaint alleging commission of offence under Negotiable Instruments Act, 1881 as amended. He urges that the provisions in this case cannot be construed as mandatory because private complaints are brought before a Magistrate alleging offences punishable not only under IPC but even under the Negotiable Instruments Act and such other laws. Therefore, if the scheme of the other laws is taken into account, then, obliging the Magistrate to postpone the issue of process merely because the accused is not residing within the area of the said Magistrates jurisdiction would mean that the very purpose of summoning him for trial of offences under laws such as Section 138 of Negotiable Instruments Act, can be defeated. In such a case, if the Magistrate is obliged to hold an enquiry himself or direct the police authorities to investigate the matter, it is nothing but a duplication. Inviting my attention to sections 200, 201 and other provisions including 190, it is urged by Mr.Mundergi that wherever a complaint is made over to the Magistrate or the Magistrate is seized thereof, he is, under the scheme of section 200, obliged to examine the complainant and his witness in case the complaint is not in writing or if it is in writing, but not falling within the proviso to section 200. In these circumstances, if the Magistrate has to again hold an enquiry merely because some of the accused in the case are residing outside the area over which he has jurisdiction, means the matter must start from the stage of section 200. Thus, all earlier efforts of the Magistrate would be a waste. Such can never be the intent of the Legislature and more particularly when in the same section 202, which is amended, there are several provisions which are construed as directory.

The ambit and scope of the enquiry by the Magistrate and whether the Magistrate is obliged to summon the witnesses and record evidence, are all aspects which were taken into consideration by the Supreme Court in the case of Rozy Vs. State of Kerala (supra) and the Supreme Court concluded that these provisions can never be held to be mandatory. They are directory. The Supreme Court rendered its decision on section 202(2) Cr.P.C. by taking aid of section 465 of Cr.P.C. In such circumstances, even the instant provisions/ amendments must be held to be directory. Mr.Mundergi submits that the attention of the learned Single Judge of this Court was not invited to all these aspects and, therefore, his order cannot be said to be an authoritative pronouncement on the subject. Even the Supreme Courts decision must be considered to be a disinclination to interfere with the order of the learned Single Judge of Kerala High Court on facts and nothing more. There is no principle laid down in that decision nor has the Supreme Court decided as to whether the provisions in question are mandatory or directory. For all these reasons, this Court must not follow this judgement/ order but independently render its decision by holding that the subject provision is directory.

8. The arguments of Mr.Mundergi are supported by Mr.Jethmalani, learned Senior Counsel. While supporting them in the alternative he would urge that assuming that the provision inserted in 2005 in section 202 is held to be mandatory, yet, consequences flowing from such a construction and interpretation in the individual cases must be an issue which must be kept open. The Court may not vitiate each and every order impugned in these petitions but with the aid of section 465 of Cr.P.C. and its inherent powers issue appropriate directions. He submits that the Court must not interfere in matters which have progressed to such a stage that by reversal of orders, parties would be seriously prejudiced. Mr.Jethmalani would urge that the settled principle of interpretation namely the inconvenience caused to public by construing a provision as mandatory can be applied in this case because there is an express provision like section 465 of Cr.P.C. In cases where there was no such express provision, even then, such a conclusion has been arrived at by the Supreme Court and this Court in several decisions. He presses into service the settled principle that the inconvenience caused to the public and to those who have no control over the proceedings is a relevant factor while holding a particular provision to be mandatory and/or directory. Applying these tests, this Court should pass an appropriate order is his submission.

9. The arguments of Mr.Mundergi are adopted by Mr.Jha appearing in one of the matters. Even he would urge that the provision is directory and must be interpreted as such in the light of the avowed object of several enactments including, Negotiable Instruments Act. All other Counsel have either supported the views of Mr.Desai and Mr.Gupte or the contrary view.

10. For properly appreciating the rival contentions a reference would be necessary to the relevant statutory provisions. The relevant chapter in the Cr.P.C. is Chapter XV. That is entitled "complaints to Magistrate". Therein appears section 200, 201 and 202. Since section 202 and the amendment thereto directly falls for consideration and determination, the same is reproduced hereinbelow:-

"202. Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognisance 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 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:

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. A bare perusal of the unamended provision would indicate that any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognisance or which have been made over to him under section 192 may, if he thinks fit, postpone the issue of process against the accused and either enquire 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. Thus, it is common ground that the unamended provision conferred discretion on the Magistrate to postpone the issuance of process and to either enquire into the case himself or direct investigation to be made by the police authorities. Proviso to sub-section 1 of section 202 states that where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of sessions or 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, then, no direction for investigation under section 202(1) be made.

12. In sub-section 2 of section 202, the Magistrate is given a further discretion to take evidence of witnesses on oath. The proviso to this sub-section fell for interpretation of the Supreme Court and that is concerning an offence complained of being exclusively triable by the Court of sessions. In such a case, the proviso states that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. In the case of Rozy (supra), the issue before the Supreme Court was whether the proviso to sub-section 2 of section 202 of Cr.P.C. is mandatory. That question arose for consideration in appeals by Special Leave which were directed against common judgement dated 7th June 1999 passed by the High Court of Kerala in Criminal Reference No.2 of 1999 and Criminal Revision No.1035 of 1998. The Division Bench of the High Court quashed committal order in Sessions Case No.39 pending before the Sessions Court Trichur and directed the Magistrate to conduct fresh enquiry in terms of the proviso to section 202(2) and, thereafter pass an order of committal to the sessions court. The nature of criminal proceedings are referred to in paras 30 and 31 of the Supreme Court decision. It is in the context of interpretation of this proviso that the Supreme Court made the observations relied upon by Mr.Mundergi. It may be true that the observations in para 45 are to the effect that the Magistrate while examining the witnesses on oath is mandated to comply with the proviso but that mandate is not absolute. The said observations are made in para 45 after referring to sections 460 and 461 which provide for irregularities which would or which would not vitiate the proceedings. The Supreme Court observed that there is no reference to section 202 in either of these provisions and, therefore, referred to section 465 in coming to the above conclusion. Further in para 44 it made a reference to the settled principle, viz., that by the use of word "shall" it appears that the language used in the proviso in question was of mandatory in nature. However, at the same time, it held that it is a procedural law and it is to be read in the context of section 200 which enables the magistrate to issue process without holding any enquiry and that enquiry under section 202 is itself discretionary one, giving the option to examine or not to examine the witness on oath.

13. With respect, the observations in paras 44 and 45 heavily relied upon by Mr.Mundergi must be confined to the fact situation and the question that arose for decision of the Supreme Court in Rozys case. There is substance in the contention of Mr.Desai and Mr.Gupte that the Legislature was very much aware of the presence of other provisions in the Cr.P.C. including section 465 and, therefore, this amendment to the very same section is deliberate. The mandate flowing therefrom cannot be ignored.

14. In Principles of Statutory Interpretation, 11th Edn. 2008 by Respected Author, Justice G.P.Singh, the following pertinent observations have been made:-

"The use of word "shall" raises a presumption that the particular provision is imperative".

15. While it is true that the learned Author has made reference to the other principles, yet, after making a reference to a series of decisions of the English Courts and the Honble Supreme Court, the Author observes that " if the object of enactment will be defeated by holding the same directory, it will be construed as mandatory." He has also invited the attention of all concerned to the settled practice of using the words "may" and "shall" in the very section.

16. In that context he has made a reference to several decisions of the Supreme Court. One decision to which he has made reference is Mahalaxmi Rice Mills Vs. State of Uttar Pradesh, A.I.R. 1999 S.C. 147. The Supreme Court in paras 9, 10 and 13 of this decision makes reference to the relevant statutory provisions and the amendments and in that context in para 10 observes thus:-

"10. It is significant to note that the word used for the seller to realise market fee from his purchaser is "may" while the word used as for the seller to pay the market fee to the Committee is "shall". Employment of the said two monosyllables of great jurisprudential import in the same clause dealing with two rights regarding the same burden must have two different imports. The legislative intendment can easily be discerned from the frame of the sub-clause that what is conferred on the seller is only an option to collect market fee from his purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realised it from the purchaser or not."

17. The same situation emerges from a reading of the Supreme Court decisions in the case of The Labour Commissioner and Anr. Vs. Burhanpur Tapti Mills Ltd. And Ors. Reported in A.I.R. 1964 S.C. 1687 and J.K.Govani Vs. State of Maharashtra reported in A.I.R. 1968 S.C. 178. Therefore, employment of the two monosyllables of jurisprudential import in the same section must have two different imports. One can be construed as mandatory and imperative, even if there is present another part which is discretionary or directory and uses the word "may". It is not necessary to multiply decisions. Suffice it to refer to the following passage in Principles of Statutory Interpretation by Honble Mr.Justice G.P.Singh:-

"The use of word "may at one place and "shall" at another place in the same section may strengthen the inference that these words have been used in their primary sense and that "shall" should be construed as mandatory. When the expressions "shall" and "may" are defined in the Act (for example "shall presume" and "may presume" in section 4 of the Evidence Act) the expressions have to be given the meaning as defined.

"The words "shall and may" are construed imperatively. As pointed out by Lord Brougham: "If the words are it "Shall and may", be so and so done, by such and such officer and body then the word "may" is held in all soundness of construction to confer, a power but the word "shall" is held to make that power, or the exercise of that power compulsory".

18. While it is true that this by itself is not decisive and the Court having regard to the context and consequences can conclude that part of the Section employing the word "Shall" is directory, according to the same learned Author, yet, the decisions referred by him on this point are rendered because the context required otherwise. In this case, such a context and purpose is not discernible. In fact, it is otherwise and culls out a clear mandate. To my mind, when the Legislature decided to amend section 202 of the Cr.P.C. it was with a defined purpose. The amendment act was enacted making extensive and wide changes in Cr.P.C. One of the change and amendment is to section 202. While referring to the changes in section 202(1) of Cr.P.C., the Legislature emphasises filing of false complaints against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons that the Legislature amended sub-section 1 of section 202 and inserted therein the words "and shall in a case where the accused is residing in a place beyond the area the Magistrate exercises his jurisdiction". Once, the object and purpose of the amendment is understood, then, it would not be difficult to construe and interprete the amended provision as a mandate. It may be true that the learned Single Judges attention was not invited to all these aspects yet, I do not find that any other conclusion is possible. The interpretation placed by the learned Single Judge of this Court that the provision as amended is a mandate to the Magistrate is indeed unexceptionable.

Even the Supreme Court has placed its seal of approval on this very interpretation of the subject provision by a learned Single Judge of Kerala High Court. It is not possible to agree with Mr.Mundergi and the other learned Counsel that the Supreme Court was not concerned with identical provision. Before the Supreme Court in issue was the correctness of the view taken by the learned Single Judge of Kerala High Court, that the words inserted by the amendment are mandatory. While agreeing with the learned Single Judge, the Supreme Court observes that this legal interpretation is unexceptionable. This view of the Supreme Court is binding upon me. A binding Supreme Court decision cannot be brushed aside by holding that a particular provision was not noticed by it or its attention was not invited to several aspects of the controversy. Once the Supreme Court decision is in the field, then, no other view is possible and permissible. The Rule of Precedents and more particularly concerning a binding Judgment of the Supreme Court is applicable here. (See A.I.R. 2002 S.C. 1598 - Director of Settlements A.P. Vs. M.R.Apparao & Anr.)

19. Apart thereof and independently as well I am of the view that the Magistrate is obliged to postpone issuance of process where he receives a complaint alleging commission of offence by persons, arrayed as accused, but who are not residing within the area in which he exercises his jurisdiction. There, he is obliged to postpone the issue of process and either enquire into the case himself or direct investigation to be made by police officer or by other person, as he thinks fit. What course he should follow is left to him but he must postpone the issue of process is the mandate flowing from the amended provisions and that cannot be brushed aside by him. If the purpose of this exercise is to decide whether or not there is sufficient ground for proceeding against such persons and the Legislature noticing such persons are unnecessarily dragged into criminal proceedings and merely to harass them, then all the more the amended provision will have to be construed and interpreted as mandatory. If the said provision is held to be otherwise, it would defeat the very object and purpose of the amendment. The view taken by me is identical to that of the Kerala High Court (Criminal Revision Petition No.1858 of 2008 K.T.Joseph Vs. State of Kerala & Anr.,) dated 31st July 2008 and of Punjab High Court (S.K.Bhowmik Vs. S.K.Arora and Anr decided on 19th September 2007).

20.It is not possible to agree with Mr.Mundergi and the other Counsel advancing the contrary view that section 465 aids and assists in interpreting the amended provision in question as Directory. Despite section 465 holding the field the subject provision/ section has been amended by the Legislature. Further, the purpose served by inserting section 465 is obvious. In the two decisions of the Supreme Court namely, A.Devendran Vs. State of Tamilnadu, reported in A.I.R. 1998 S.C. 2821 and State of M.P. Vs. Bhooraji reported in A.I.R. 2001 S.C. 3372, which have to be noticed while considering section 465, the provision is held to be a residuary section in the Chapter intended to cure any error, omission or irregularity committed by Court of competent jurisdiction in the course of trial, through inadvertance. The object of the section is to secure justice by preventing invalidation of the trial already held on the ground of technical breaches of any provisions. The intention is to eliminate all possibilities of acquittal, of persons committing offences, instead on the merits. The Supreme Court holds that the Legislature disfavours axing down the proceedings or to direct repetition of the whole proceedings afresh merely because there was omission or irregularity in the proceedings during the trial or in any enquiry. These were reckoned by the Legislature as possible occurrence in criminal courts.

As to how this provision or its presence can have any effect on the interpretation placed on the amended section 202 (1) is not clear to me at all. Mere presence of section 465 would not, therefore, be decisive in this case. Therefore, the argument that the consequence of the provision not being adhered to strictly even if it is mandatory, being provided in the very statute is a pointer to the amendment being considered as directory cannot be accepted. Any wider question or larger controversy based on the Principle of Public Inconvenience need not be gone into and decided. It is urged that the provision is inserted for the benefit of an accused and hence is capable of being waived by him. Therefore, it should be construed as Directory. Even this aspect need not be gone into in the present case.

21. In the result, I hold that the amendment made to section 202(1) of Cr.P.C. insofar as postponement of issuance of process against the accused who are not residing in the area in which the concerned Magistrate exercises his jurisdiction is mandatory.

22. Let the matter be placed for admission.