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1 IN THE HIGH COURT AT CALCUTTA CRIMINAL RIVISIONAL JURISDICTION APPELLATE SIDE PRESENT : THE HON BLE JUSTICE JOYMALYA BAGCHI C.R.R. 897 OF 2017 With C.R.A.N of 2017 RAMESH RAMESH SOBYI VERSUS... PETITIONER STATE OF WEST BENGAL AND ANOTHER... OPPOSITE PARTIES Mr. Ayan Bhattacharyya Mr. Sayak Ganguly Mr. Sandipan Ganguly Mr. Arkadeb Bhattacharyya Mr. Abhishek Bhattacharjee Ms. Faria Hussain Heard On : 23 rd June, For The Petitioner... For The O.P. No.2... For the State Judgment On: 23 rd June, Joymalya Bagchi, J. Notice dated issued by Officer-in-Charge, Shakespeare Sarani P.S. under Section 41A of the Code of Criminal Procedure upon the petitioner in the course of investigation under Section 202 of Cr.P.C. is the subject matter of challenge. Shorn of details the basic facts giving rise to the notice is to the fact that a petition of complaint alleging commission of offences punishable under Sections 386/406/409/420/120B of the Indian Penal Code was filed by the opposite party no. 2 against the petitioner. By order dated the learned Magistrate took cognizance of the alleged offences and subsequently by order dated directed investigation under Section 202 Cr.P.C. by Officer-in-Charge of Park Street

2 P.S. Subsequently, such investigation was transferred to Shakespeare Sarani P.S. on the point of jurisdiction. In the course of such investigation, the police officer issued notice under Section 41A of the Code of Criminal Procedure upon the petitioner who is shown as an accused in the complaint to appear before him for the purpose of investigation, as aforesaid. Mr. Bhattacharyya, learned counsel appearing for the petitioner submitted that the police officer acted beyond his jurisdiction in issuing notice under Section 41A Cr.P.C. inasmuch as he did not have the power to arrest the accused under Section 41 Cr.P.C. in the course of investigation under Section 202 Cr.P.C. Drawing distinction between investigation under Section 156 (3) Cr.P.C. and Section 202 Cr.P.C, it is emphatically argued by Mr. Bhattacharyya that power to arrest being absent in the course of investigation under section 202 Cr.P.C, issuance of notice under section 41 A Cr.P.C as a surrogate to arrest is also beyond the jurisdiction of the police officer. It is further submitted that enquiry under Section 202 Cr.P.C. is conducted by the Magistrate is in absentia of the accused. Therefore, the police officer as a delegatee of the Magistrate cannot insist on the attendance of the proposed accused in the course of such enquiry/investigation. Finally, Mr. Bhattacharyya submitted that issuance of such process is an interference with the right of personal liberty and dignity of the petitioner even prior to issuance of process against him under section 204 Cr.P.C. by the Court. Mr. Bhattacharyya, however, submitted that his client by way of abundant caution had put in a writing representation with regard to the case for the consideration of the investigating officer in response to such notice clearly ruling any insinuation of non-cooperation to the process of investigation. On the other hand, Mr. Ganguly, learned senior counsel for the opposite party no. 2-complainant submitted that incorrect reference of a provision of law does not necessarily denude the police officer to request a proposed accused from cooperating with the enquiry/investigation under section 202 Cr.P.C. In fact, issuance of the impugned notice is to the advantage of the proposed accused and he cannot be said to have been prejudiced by exercise of such power in anyway.

3 He further submitted that the word investigation as defined under 2(h) of Cr.P.C. is an inclusive one and would include within its ambit all incidental or ancillary powers which would aid the collection of evidence in the course of such activity. Notice to an accused in the course of investigation/enquiry by a police officer under Section 202 Cr.P.C. is, to be considered in that perspective and ought not to be quashed merely on the ground of incorrect reference to Section 41A of the Code of Criminal Procedure. It is submitted that the response was sent to the police officer on behalf of the bank and not the petitioner personally to whom the notice had been addressed. The issue which, therefore, falls for decision is whether a notice to a proposed accused in the course of investigation/enquiry by a police officer under Section 202 Cr.P.C. is valid or not. I have no doubt in my mind that reference to Section 41A Cr.P.C. in the impugned notice is incorrect. Section 41A Cr.P.C. was incorporated in the Code of Criminal Procedure as an enabling power to interrogate an accused in respect of offences punishable up to seven years imprisonment in the event for reasons to be recorded in writing, the police officer is of the opinion that arrest of the accused is not necessary in the facts of the case. Hence, power to issue notice under Section 41A of the Criminal Procedure Code by a police officer to an accused is, therefore, subject to the pre-condition that he had the power to arrest the accused under Section 41 Cr.P.C. but for reasons to be recorded in writing had chosen not to do so and has resorted to issuance of notice of appearance under section 41A Cr.P.C. In Ramdev Food Products Pvt. Ltd. vs. State of Gujarat reported in (2015) 6 SCC 439 the Apex Court held that the police officer conducting investigation under section 202 Cr.P.C.as a delegatee of the magistrate does not have the power to arrest the accused. It held as follows: 25. We are of the view that the maxim does not apply for interpretation of Section 202(3) for the reasons that follow. In our view, the correct interpretation of the provision is that merely negating the power of arrest to a person other than police officer does not mean that police could exercise such power. The emphasis in the provision is to empower such person to exercise other powers of in charge of a police station than the power of arrest. As regards the power of police to arrest, there are expressed provisions dealing with the same and power of police to arrest is not derived from or

4 controlled by Section 202(3). The said power is available under Section 41 or under a warrant. The power remains available subject to conditions for exercise thereof. For example, it can be exercised if cognizable offence is committed in the presence of a police officer [Section 41(1)(a)]. Under Section 202, since the Magistrate is in seisin of the matter and has yet to decide whether or not there is sufficient ground for processing, there is no occasion for formation of opinion by the police about credibility of available information necessary to exercise power of arrest as the only authority of the police is to give report to Magistrate to enable him to decide whether there is sufficient ground to proceed. Power of arrest is not to be exercised mechanically. When the police officer did not have the power to arrest the accused under Section 41 Cr.P.C. in the course of investigation under section 202 Cr.P.C. by necessary implication he is denuded of the corollary power to issue notice of appearance under Section 41A of the Code of Criminal Procedure to the accused. Hence, I am of the view that the issuance of notice upon an accused under Section 41A Cr.P.C. in the course of investigation under Section 202 Cr.P.C. by a police officer is illegal. It is true that mere reference to an incorrect provision of law will not denude an authority from exercising powers which it otherwise possesses. It has been strenuously contended that the investigation under Section 202 Cr.P.C. is of a limited nature only to shift the materials in the complaint and the accompanying documents and not an exercise of plenary powers of investigation as envisaged under Chapter XII of the Code of Criminal Procedure. In the course of investigation under section 202 Cr.P.C., the police officer is not required to verify the defence version of the accused. Scope and ambit of enquiry under section 202 Cr.P.C. was succinctly laid down in Chandra Deo Singh vs. Prokash Chandra Chabi Bose & Anr. reported in AIR 1963 SC 1430 as follows:- For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. As stated in sub-section (1) of S.202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.

5 Similar view has also been expressed in National Bank of Oman vs. Barakara Abdul Aziz & anr. reported in (2013) 2 SCC 488 the Court held as follows:- (i) (ii) (iii) 9. The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint : on the materials placed by the complainant before the court; for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and for deciding the question purely from the point of view of the complainant without al all adverting to any defence that the accused may have." The aforesaid reports clearly law down the boundaries and limits of the power of enquiry under Section 202 Cr.P.C. Such enquiry is not similar to a full-fledged investigation under Chapter XII of the Code, but is limited only to verify the prima facie truthfulness in the allegations in the petition of complaint on the basis of the complaint and the witnesses produced by the complainant in support of his allegations. The police officer investigating under Section 202 Cr.P.C. under orders of the Magistrate is, therefore, required to look into the prima facie veracity of the allegations in the complaint and submit a report before the learned Magistrate as to whether there is sufficient ground to proceed against the accused or not. Enquiry under Section 202 Cr.P.C. is to be held in absentia of the accused and his defence version is not required to be gone into to determine whether sufficient grounds exist to proceed against the accused. The Apex Court in Chandra Deo Singh (supra) categorically ruled out any participation of the accused in the course of such enquiry as follows:- The entire scheme of Ch. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on.

6 The Court further held:- But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. No doubt, one of the objects behind the provisions of S.202, Cr.P.C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under S. 202 can in no reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. Hence, there is no dispute that a Magistrate holding enquiry under Section 202 Cr.P.C. cannot call upon an accused to participate in such enquiry or pose any question to him or his witnesses. It is only upon conclusion of such enquiry if the Magistrate is satisfied on the basis of materials on record that there is sufficient ground to proceed against the accused he shall issue process for his appearance in the case. He cannot permit the accused to participate and canvass his defence in the course of the pre-summoning enquiry and convert it to a mini trial even before the commencement of the trial itself. It is another thing that in some cases, specific defence of the accused like private defence, may emanate from the unconverted allegations in the complaint itself or the materials adduced in the course of such enquiry. In such cases, the Magistrate would certainly take cognizance of such facts to decide whether sufficient ground to proceed against the accused is made out or not (See Vadilal Panchal vs. Dattatraya Dulaji Ghadigaonker, AIR 1960 SC 1113). The aforesaid authority cannot be construed to justify examination of the

7 accused and/or consideration of the defence version beyond the four corners of the petition of complaint in the course of enquiry under Section 202 Cr.P.C. Police officer conducting investigation under Section 202 Cr.P.C. is a delegatee of the Magistrate and his powers of investigation are, therefore, circumscribed by the limitations imposed upon the principal, that is, the Magistrate himself. Since the Magistrate in the course of enquiry under Section 202 Cr.P.C. is not entitled to issue notice upon the accused to appear and participate in the proceeding, the police officer as his delegatee cannot claim higher powers and issue notice upon the accused and interrogate him in the course of investigation under Section 202 Cr.P.C. No doubt, the police officer may exercise other powers of investigation e.g. proceed to the spot, interrogate the complainant and his witnesses, collect evidence by effecting searches and seizures for the purpose of determining the intrinsic truth in the allegations in the complaint but he cannot in course of such investigation issue notice to the accused and interrogate him to elicit his responses to the allegations in the complaint. If he does so, he would be enlarging the scope of enquiry under Section 202 Cr.P.C. wherein an accused is precluded from participating and raising his defences in rebuttal to the allegations in the petition of complaint. Accordingly, I set aside the impugned notice dated which is illegal and without jurisdiction. I further direct that the police officer shall conduct investigation under section 202 Cr.P.C. in the light of the observations made in this judgment for the limited purpose of verifying the allegations in the petition of complaint as to whether sufficient ground for proceeding against the accused persons is made out or not and submit report before the magistrate at an early date preferably within three months from the date of communication of this order. With the aforesaid observation the petition along with the application is disposed of. (JOYMALYA BAGCHI, J.) Alok (AR.Ct) & PA to J. Bagchi, J.