VIJAY DHANUKA ETC V/S NAJIMA MAMTAJ 2014 Cri LJ 2295

INTRODUCTION

Vijay Dhanuka v/s Najima Mamtaj is a significant case that deals with the powers of a magistrate. This case was heard and decided by a Division Bench of the Honorable Supreme Court of India, consisting of Justice Chandramauli KR.Prasad and Justice Pinaki Chandra Ghose.

FACTS OF THE CASE

In a complaint case for the commission of an offence under Sections 323, 380, and 506 read with Section 34 of the Penal Code, 1860, the petitioners have been summoned. On October 1, 2011, Respondent 1 submitted a complaint with the Court of Additional Chief Judicial Magistrate in Jangipur, Murshidabad. After the complaint was acknowledged, it was sent to the Court of the Judicial Magistrate in Jangipur, Murshidabad for investigation and resolution.

The complaint petition claims that Rajdip Dey, the first accused, works as a sub-broker for Karvy Stock Broking Ltd. While its employees stationed in Hyderabad and Kolkata make up the other accused parties. The complainant claimed to own shares from Karvi Stock Broking Ltd. and identified himself as its investor. Accused 1 did so through the sub-broker. The complainant claims that a disagreement developed between her and the accused individuals regarding the trading of shares. In an effort to resolve the ongoing disagreement, the accused individuals made a proposal to the complainant, who accepted it. As a result, on September 11, 2011, the accused individuals paid a visit to the complainant’s home in Raghunathganj Darbeshpara to speak with her and her husband. The dialogue allegedly came to naught, and the accused individuals began yelling at the other party. According to the allegation, some of the defendants pulled a firearm from their bag and held it over the complainant’s and her husband’s heads. They are accused of hitting the complainant and her husband with their fists, abusing them, forcing the complainant to sign some documents, and stealing the suitcase holding some papers.

The aforementioned complaint was lodged on January 10, 2011, in the Jangipir, Murshidabad, Additional Judicial Magistrate’s Court. The learned magistrate declared the offence to have occurred and forwarded the case to the court of another magistrate for investigation and resolution. The case was postponed to October 31st, 2011, by the transferee magistrate after receiving the record.

ISSUES

1. Did the Magistrate conduct the investigation required by Section 202 CrPC before issuing the summons?
2. Would it be obligatory to have an inquiry or an investigation as the Magistrate sees fit to determine whether there is enough justification to move forward in a case when the accused is residing somewhere beyond the area in which the Magistrate exercises his jurisdiction?

ARGUMENTS

The petitioners contested the summons-issuing procedure in four separate applications made under Section 482 of the code before the High Court, arguing, among other things, that since the accused people lived in a region outside the learned Magistrate’s territorial jurisdiction, an inquiry within the meaning of Section 202 of the code was required. It was further argued that the learned Magistrate was merely obligated to determine whether there are sufficient grounds for proceeding against the accused after conducting an investigation in accordance with Section 202 of the code.

According to Mr. Jagdeep Gupta, Senior Counsel, who is acting on behalf of the appellants, an investigation under Section 202 of the code was necessary because the accused individuals admittedly resided in a location outside of the scope of the learned Magistrate’s authority. He claims that the learned Magistrate in this matter did not conduct an inquiry as required by Section 202 of the code.

However, Ms. Nidhi, the attorney for Respondent 1, asserts that the learned Magistrate actually conducted the legally required inquiry before issuing the process, so the process for issuing the order cannot be faulted for this reason.

JUDGEMENT

1. The word “shall” usually denotes a requirement, but depending on the situation or the intended, it may also refer to a recommendation. It is not necessary to use the word “shall” in all situations. However, the word “shall” in Section 202(1) CrPC appears to make the Magistrate’s inquiry—or investigation, as the case may be—mandatory.
2. As a result, it is evident from the legislative objective that the goal is to protect innocent people from being harassed by dishonest people who file false complaints. Therefore, it is evident that an inquiry or investigation, as the case may be, is required before summonses are issued against the accused who resides outside of the Magistrate’s territorial jurisdiction. This is especially true when taking into account the use of the word “shall” as well as the context and purpose for which the amendment has been brought.
3. Every investigation that is not a trial that is conducted by the Magistrate or the court is an inquiry, as is clear from the definition of “inquiry” under Section 2(g) CrPC. Section 202 does not specify any particular style or method of investigation.
4. The Magistrate in this case interviewed the complainant on solemn oath and the two witnesses, and only then did he direct that the process be issued. As a result, the Magistrate held the investigation before sending out summonses.
5. Section 192 of the Criminal Procedure Code allows any Chief Judicial Magistrate to transfer a matter to a qualified Magistrate under his supervision for an inquiry after taking cognizance. In this instance, the learned Additional Chief Judicial Magistrate had transferred the case to the transferee Magistrate for investigation and disposition after receiving the complaint and taking cognizance of the offence in accordance with Section 192 of the Criminal Procedure Code. As a result, it absolutely complies with the code’s requirements.

REFERENCES

http://www.scconline.com

https://indiankanoon.org

This Article is written by Ayushi Notani of Vivekananda Institute of Professional Studies

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