Dr. Subhadip Sarkar. vs Rahul Chakraborty.

Asha Arora, J.

Petitioner has assailed the proceeding of a complaint case being A.C. Case No. 601 of 2017 under Sections 406/420/384/506/120B of the Indian Penal

Code pending before the learned Judicial Magistrate, 2nd Court, Alipore, South 24-Parganas including the order dated April 18, 2017 passed in the

aforesaid case issuing process against the accused persons. The impugned order is reproduced herein below : -

“ The complainant is examined under Section 200 Cr.P.C. On perusal of the record and the statements of the complainant and the documents it

appears to me that there is sufficient ground to proceed against the accused persons under Section 406/420/384/506/34 I.P.C. against the accused.

Issue process under Section 204 of Cr.P.C. against the accused Arpita Das and Subhadip Sarkar. Fix 02.06.2017 for service return and appearance.

The complainant is to file requisites at once.â€​

Three issues have mainly been raised by the learned counsel for the petitioner challenging the legality of the aforesaid proceeding including the order

issuing process. Firstly, it is submitted that without examining the complainant on solemn affirmation the process was issued by taking into

consideration the affidavit of the complainant which was tendered in evidence. It is canvassed on behalf of the petitioner that in view of section 200

Cr.P.C. examination of the complainant who is not a public servant and the witnesses present, if any, is mandatory for the purpose of forming an

opinion as to whether there was sufficient ground for proceeding against the accused and to prevent issue of process on complaints which are false or

vexatious. Fortifying his submission by the decision reported in (2009) 1 Supreme Court Cases 407 in the case of National Small Industries

Corporation Limited Versus State (NCT of Delhi) & Others, learned counsel for the petitioner sought to impress that the examination envisaged under

Section 200 Cr.P.C. is physical examination of the complainant and not examination on affidavit.

Therefore a Magistrate cannot act upon the affidavit of the complainant and/or witnesses unless the complaint is governed by a statute which

empowers him to accept the affidavit of the complainant/witnesses, as the case may be as in a case under the Negotiable Instruments Act. Section

145 of the said Act specifically provides that the evidence of the complainant may be given by him on affidavit. Secondly, it has been argued that as

the accused resided beyond the territorial jurisdiction of the trial court, enquiry under section 202 (1) Cr.P.C. which is mandatory, was not conducted

in the instant case, prior to issuance of process. In the absence of such course being adopted by the Magistrate, he had no jurisdiction to issue process

against the accused. In support of such submission, reliance has been placed on the case of Aroon Poorie versus Jayakumar Hiremath reported in

(2017) 7 Supreme Court Cases 767. The other argument advanced on behalf of the petitioner is that there was no transaction between the

complainant and the petitioner who married the accused no. 1 subsequent to the transaction in question. It has been urged that there is no justification

for issuance of process against the petitioner since there is no allegation against him in the petition of complaint.

Learned counsel for the opposite party countered that non- examination of the complainant is a mere irregularity which is curable under Section 465

(1) of the Criminal Procedure Code. Referring to the petition of complaint it has been argued that since the averments in the complaint prima facie

make out a case for proceeding against the accused, the order issuing process cannot be set aside on the mere plea of non-compliance of section

202(1) Cr.P.C. In support of such submission learned counsel for the opposite party relied upon the decisions reported in (1999) 3 Supreme Court

Cases 259 in the case of Rajesh Bajaj Versus State NCT of Delhi & Others, (2001) C Cr LR (Cal) 392 in Dipak Ghosh Dastidar versus Sanat Kumar

Mukherjee and State. Reference has also been made to the case of Shyamal Kumar Goswami & Another Versus Ashim Mukherjee reported in

(2014) 1 C Cr. LR (Cal) 150.

The question which falls for consideration is whether failure to examine the complainant in accordance with Section 200 Cr.P.C. and non-compliance

of the provisions of Section 202 (1) Cr.P.C. would by itself vitiate the proceeding and the order issuing process against the accused. In Dipak Ghosh

Dastidar versus Sanat Kumar Mukherjee and State reported in 2001 C Cr. LR (Cal) 392 a learned Single Judge of this Court, while dealing with the

first mentioned issue held as follows in paragraphs 19 and 20 of the judgement : -

“19. We have to give the law always a practical meaning. The question that arises before the Court in the event a procedure has not been properly

adopted as to whether it is such an illegality which is an incurable irregularity because of prejudice leading to a failure of justice or whether it is a mere

irregularity curable under Section 465 of the said Code. It has to be seen that as to whether the defect that has occasioned has caused failure of

justice or prejudice to the accused and has affected him adversely.â€​

In the instant case I find that the Petition of Complaint makes out a very clear case against the accused person and simply for the failure to

examine the complainant on oath, cannot vitiate the entire proceeding and in my view, it is at best a mere irregularity curable under Section 465(1) of

the said Code. â€​

In the present case paragraph 10 onwards of the petition of complaint discloses a prima facie case for proceeding against the petitioner who is the

accused No. 2 in the petition of complaint. There is, therefore, no substance in the argument that the petition of complaint does not make out any case

against the petitioner. Since the petition of complaint itself makes out a case against both the accused including the petitioner herein, non-examination

of the complainant in this case has not in any manner affected the tenability of the proceeding nor any prejudice is shown to have been caused to the

accused. The decision reported in (2009) 1 Supreme Court Cases 407 (supra) relied upon by the learned counsel for the petitioner is clearly

distinguishable on facts from the present case.

Coming to the issue of non-compliance of the provision of Section 202(1) Cr.P.C., on a bare perusal of the petition of complaint it would appear that

there is sufficient ground for proceeding against the petitioner in the instant case. Petitioner could not show how he has been prejudiced due to failure

to hold enquiry under Section 202(1) Cr.P.C. prior to issuance of process or that such non-compliance has occasioned a failure of justice in terms of

Section 465 Cr.P.C.. Aroon Poorie’s case (supra) relied upon by the learned counsel for the petitioner is not apposite for the purpose of the

instant case.

In the aforesaid case, upon considering the averments in the petition of complaint it was found that the necessary ingredients for the alleged offences

could not be made out. Besides, there was non-compliance of the provisions of Section 202(1) Cr.P.C. In the instant case, the petition of complaint

itself makes out a case for proceeding against the petitioner so failure to comply with the provisions of Section 202 (1) Cr.P.C. would not vitiate the

proceeding or the order issuing process against the accused particularly when non-compliance thereof has not occasioned any failure of justice or

prejudice to the accused.

For the reasons aforestated, I do not find any merit in the instant application. The application being C.R.R. No. 2124 of 2017 is accordingly dismissed.

The connected application being C.R.A.N. No. 4635 of 2017 also stands dismissed. No order as to costs. Urgent photostat certified copy of this order,

if applied for, be given to the applicant upon compliance of requisite formalities.