Arunabha Basu, J.:— Scope and object of the amended provision of section 202 of the Code of Criminal Procedure (hereinafter called the Code), is the subject matter of present discussion, which arises out of revisional application filed under section 401 read with section 482 of the Code, whereby and whereunder the legality and propriety of the order passed by the learned Chief Judge, City Sessions Court, in connection with Criminal Revision No. 146 of 2006 is sought to be assailed by the petitioners herein.

2. Petitioners herein instituted complaint case registered as Complaint Case No. 6333 of 2006 under section 406/409/465/467/471/477A and 201 of the Indian Penal Code against eight persons including the company.

3. Fact of the case on which the aforementioned complaint case was initiated is not relevant for the purpose of present discussion, save and except, that some of the accused persons as mentioned in the petition of complaint, are resident which falls outside the jurisdiction of the learned Chief Metropolitan Magistrate, Calcutta before whom the complaint was instituted.

4. The learned Chief Metropolitan Magistrate on consideration of evidence recorded under section 200 of the Code directed issuance of process against all the accused persons as arrayed in the petition of complaint. After directing issuance of process, learned Chief Metropolitan Magistrate transferred the aforementioned case to the file of learned Metropolitan Magistrate, 12thCourt for proceeding further with the aforementioned case.

5. In the meantime, three petitioners namely Sushil Kumar Daga (arrayed as accused No. 2 in the petition of complaint), Krishna Damani (arrayed as accused No. 3 in the petition of complaint) and Umesh Verma (arrayed as accused No. 6 in the petition of complaint), moved a revisional application before the learned Chief Judge, City Sessions Court at Calcutta mainly on the ground that the aforesaid three petitioners are not residing within the territorial jurisdiction of the Court and as such the learned Court below committed at illegality in not complying the amended provision of section 202 of the Code before issuing process against them.

6. Learned Chief Judge, City Sessions Court after hearing the contention of respective parties and by his order dated 30.11.2006, set aside the order issuing process passed by learned Chief Metropolitan Magistrate, Calcutta and further directed the learned 12 Metropolitan Magistrate to comply with the amended provision of section 202 of the Code at first and then to pass necessary order in accordance with law.

7. Learned Advocate General appearing for the petitioners herein assailed the order passed by the learned Chief Judge, City Sessions Court and during the course of his submission raised points of law about the object and scope of the amended provision of section 202 of the Code. The submission of learned Advocate General was opposed by learned Sr. Advocate Mr. Pradip Ghosh, who appeared for the opposite parties. Both the learned Senior Counsels drew the attention of this Court about the scope and application of amended provision of section 202 of the Code and in support of their contentions advanced elaborate arguments which is required to be considered in its proper perspective. Section 202 of the Code is set out below:

“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, 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.”

8. The relevant amendment to section 202 of the Code was introduced by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) and the following lines were introduced which is set out below:—

“and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction.”

9. Learned Advocate General during the course of his argument contended that the word ‘shall’ as appearing in the amended provision of section 202, may not be read separately, de hors of the entire context and scheme of the other provision of the Code and the interpretation of the amended provision is required to be considered on consideration of the entire scheme. It is further contended by learned Advocate General that while interpreting the provision the Court is required to consider the object and reason for the amendment as incorporated by Act 25 of 2005. It is further contended that while interpreting the amended provision of section 202, the Court cannot be unmindful of the fact about the entire scope of section 202, otherwise the Court may commit serious mistake in interpreting the scope of section 202 of the Code in general and the scope of amended provision in particular.

10. The following decisions are referred by learned Advocate General:

1. Municipal Corporation of Greater Bombay v. BEST Workers Union, reported in 1973 (3) SCC 546.

2. State of U.P v. Babu Ram Upadhya, reported in 1961 (2) SCR 679 : AIR 1961 SC 751 : 1961 (1) Cr. LJ 773.

3. Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation, reported in 1992 Supp (1) SCC 5.

4. Atlas Cycle Industries Ltd. v. State of Haryana, reported in 1979 (2) SCC 196.

5. Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh, reported in 1960 (2) SCR 431 : AIR 1960 SC 444.

6. Owners and Parties Interested in M.V “Vali Pero” v. Fernandeo Lopez, reported in 1989 (4) SCC 671.

7. Rubber House v. Excelsior Needle Industries (P) Ltd.., reported in 1989 (2) SCC 413.

8. State of Punjab v. Shamlal Murari, reported in 1976 (1) SCC 719.

9. P.C Chandra Jewellary Apex (Pvt.) Ltd. v. State of West Bengal, reported in judgment dated 25.4.2008 passed by the Hon'ble Justice Arunabha Basu.

10. A.R Antulay v. Ramdas Sriniwas Nayak, reported in 1984 (2) SCC 500.

11. Extract from the report of 41st Law Commission on section 202(1) Cr. PC.

12. Umer Ali v. Safer Ali, reported in Indian Decisions, New Series, 1886 volume, VI Cal. 335.

13. Bhinka v. Charan Singh, reported in AIR 1959 SC 960.

14. Martins v. Fowler, reported in 1926 AC 746.

15. Corporation of the city of Toronto and Toronto Railway Company, reported in 1907 AC 315.

11. In Municipal Corporation of Greater Bombay v. BEST Workers Union (supra), the Hon'ble Supreme Court in connection with a case under the provisions of Bombay Industrial Relations Act and the Employees State Insurance Act held that the word ‘shall’ does not always denote mandatory character. At para 16 of the aforementioned decision the Hon'ble Supreme Court held, which is set out below:

“16. Much emphasis has been laid by Mr. Gupta that the expression used in the opening words of section 78(1) is ‘shall’ and that there is no indication in sub-clause (1) of clause (d) enabling a Labour Court to take into account any other extraneous matters. According to the learned Counsel the use of the expression ‘shall’ coupled with the clear wording of sub-clause (1) of clause (d), clearly shows that the provisions are mandatory and not directory. It must be stated that a very superficial reading of sub-clause (1) of clause (d) may support the contention of Mr. Gupta. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to be served by the Act in question.”

12. In State of U.P v. Babu Ram Upadhya (supra), five Judge-Bench of Hon'ble Supreme Court while considering the scope of the police regulation, discussed the scope of the word ‘shall’ and held that mere use of the word ‘shall’ is not conclusive to decide whether a provision is ‘obligatory’ or ‘directory’. The Supreme Court at para 28 of the aforementioned decision held as follows:

‘28. The question is whether Rule 1 of para 486 is directory. The relevant rule says that the police officer shall be tried in the first place under Chapter XIV of the Criminal Procedure Code. The word “shall” in its ordinary import is “obligatory”; but there are many decisions wherein the Courts under different situations construed the word to mean “may”. This Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque dealt with his problem at p. 1125 thus:

“It is well established that an enactment in form mandatory might in substance, be directory and that the use of the word ‘shall’ does not conclude the matter.”

It is then observed:

“They (the rules) are well-known, and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.”

The following quotation from Crawford on the Construction of Statutes at p. 516 is also helpful in this connection:

“The question as to whether a statute is mandatory or directory depends upon the intent of the legislature arid not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow, from construing it the one way or the other……”

This passage was approved by this Court in State of U.P v. Mandobhan Lal Srivastava. In Craies on Statute Law, 5th Edn., the following passage appears at p. 242:

“No universal rule can be laid down as to whether mandatory enactments ‘shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”

A valuable guide for ascertaining the intention of the legislature is found in Maxwell on The Interpretation-of Statutes, 10th Edn., at p. 381 and it is:

“On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom. The duty is imposed, or, in other words, as directory only., The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.” This passage was accepted by the Judicial Committee of the Privy Council, in the case of Montreal Street Railway Company v. Normandin and by this Court in State of U.P v. Manbodhan Lal Srivastage.”

13. In Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation (supra), three Judge-Bench of Hon'ble Supreme Court while interpreting Bombay Town Planning Rules, 1955 held at para 13 of the aforementioned decision, which is set out below:

“13. The use of ‘shall’ in the given circumstances may be construed to be directory but not mandatory as contended by Shri Mehta. The appearance of shall is not conclusive, nor per se connotes its mandatory contour.. Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the consequences it produces the result it effected and above all the purpose it seeks to serve, would all be kept in view. From the fact situation the Courts are to, cull out the intention whether the construction to be put up would subserve the, purpose of the legislative intent or tend to defeat it. Public interest, is always, a paramount consideration. Since the non-compliance with issuance of notice and giving of sufficient opportunity contemplated under sub-rules (3) and (4) of Rule 21 injuriously affects the right to property of the owner or interest of the tenant or sub-tenant, as the case may be, it shall be construed to be mandatory and not directory. In this view it is redundant to burden the judgment with all the decisions cited by either Counsel.”

14. In Atlas Cycle Industries Ltd. v. State of Haryana (supra), three-Judge Bench of Hon'ble Supreme Court took a similar view while considering the scope of section 3(6) of the Essential Commodities Act, 1955 and held that the use of the word ‘shall’ is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the legislature, which is the determining factor, and that must be done by looking carefully to the whole scope, nature and design of the statute.

15. At para 20 of the aforesaid decision, the Hon'ble Supreme Court held as follows:

“20. Thus two considerations for regarding a provision as directory are: (1) absence of any provision for the contingency of a particular provision not being complied with or followed, and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with, the particular provision.”

16. In Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh (supra), three-Judges Bench of Hon'ble Supreme Court while interpreting the provisions of Oudh Estates Act held at para 20, which is set out below:

‘20. The question then is, is section 56 imperative? In our view, it is not. It, no doubt, says that “the Court of wards shall appoint ……………………….a representative”. But it is well-known that the use of the word “shall” is not conclusive of the question whether a provision is mandatory : See Hari Vishnu Kamath v. Syed Ahmad Ishaque. The intention of the legislature has to be gathered from the whole stature.’

17. In Owners and Parties Interested in M.V “Vali Pero” v. Ferandeo Lopez (supra), three-Judges Bench of Hon'ble Supreme Court while interpreting Calcutta High Court Rules, 1914, particularly in connection with Rule 4 under Chapter XXII of the aforesaid Rules, in which omission took place to record the signature of the witnesses in violation of the Rule 4, held as follows:

“The consequence of failure to comply with any requirement of Rule 4 ibid is not provided by the statute itself. Accordingly, the consequence has to be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the non-compliance. Rule 4 uses the word ‘shall’ even while requiring the signature of the witness as it uses the word ‘shall’ in respect of the other requirements of the rule. Ordinarily, the word ‘shall’ used at several places in Rule 4 must be given the same meaning at all places. However, it is also settled that this is not an invariable rule and even though the word ‘shall’ is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory. In short, the construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word ‘shall’ has been used.”

18. In this decision the Hon'ble Supreme Court also took into consideration if over emphasis is given to the word “shall” as appearing in the Rules and further held at para 23 of the aforementioned decision, which is set out below:

‘23. If the word “shall” used in this expression is construed as mandatory, non-compliance of which nullifies the deposition, drastic consequence of miscarriage of justice would ensue even where omission of the witness' signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed. On the other hand, if the word ‘shall’ used in this expression is treated as directory, the Court will have power to prevent miscarriage of justice where the omission does not cause any prejudice and the defect is only technical. The object of the provision being merely to obtain acceptance of the witness to the correctness of the deposition, that object would be advanced by taking this view and thereby empowering the Court to avoid the drastic consequence of nullifying the deposition where the correctness and authenticity is undisputed. In a case where the correctness has been disputed, it would be permissible for the Court to examine the effect of omission of the witness' signature and to reject the deposition only if it does not accept the correctness and authenticity thereof on the available material.’

19. In Rubber House v. Excelsior Needle Industries (P) Ltd.. (supra), two-Judges Bench of the Hon'ble Supreme Court while interpreting the provision of Haryana Urban (Control of Rent and Eviction) Act, 1973 and the Rules framed thereunder held at para 31 of the aforesaid decision, which is set out below:

“31. The word ‘shall’ in its ordinary import is obligatory. Nevertheless, the word ‘shall’ need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to the context, subject-matter and object of the statute in question.”

20. In State of Punjab v. Shamlal Murari (supra), two Judges Bench of Hon'ble Supreme Court while considering the non compliance of Rule about the supply of requisite particular number of copies in connection with Punjab and Haryana High Court Rules held at para 8 of the aforesaid decision, which is set out below:

“8. It is obvious that even taking a stern view, every minor detail in Rule 3 cannot carry a compulsory or imperative import. After all, what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule requires three copies and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach which can be characterised as an irregularity to be corrected by condonation on application by the party fulfilling the condition within a time allowed by the Court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, the procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. But that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of Rule 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that suit shall be produced. We further feel that the Court should, if it thinks it necessitous, exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite number. In this view and to the extent indicated, we overrule the decision in Bikram Dass's case (supra).”

21. In P.C Chandra Jewellary Apex (Pvt.) Limited v. State of West Bengal (supra) is a judgment delivered by me in connection with the aforementioned case. Even though, on earlier occasion I considered the scope of amended provision of section 202 of the Code of Criminal Procedure but I must frankly observe that issue on earlier occasion was somewhat different as the order directing enquiry under the amended provision of section 202 was the subject matter of challenge and the decision was given mainly in context of the subject matter. The entire scope of section 202 vis-a-vis the amended provision Was not taken into consideration by me in the earlier decision.

22. In A.R Antulay v. Ramdas Sriniwas Nayak (supra), five-Judges Bench of Hon'ble Supreme Court while considering the scope of the provisions of Criminal Law Amendment Act, 1952 and while upholding the decision of High Court that a private complaint in connection with the offence falling under the amended Act is maintainable, made the following observation which in my view is very relevant for the purpose of present discussion:

“Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision, for, it is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. To hold that a specific statutory exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web or argument for drawing a far fetched implication cannot be a substitute for an express statutory provision.”

23. In Extract from the report of 41st Law Commission on section 202(1) Cr. PC (supra), the relevant extract from the report of 41st Law Commissioners in connection with section 202(1) of the Code is set out below:

‘1. Legislative changes.— Under the new Code, the following changes have been made in the old law:

Firstly, the old law in sub-section (1) required the Magistrate to record his reasons for postponing issue of summons to the accused. The said requirement has been dispensed with under the present Code. The Law Commissioners in 41st Report observed:

“16.8 Section 202(1) required a Magistrate to record his reasons in case he postpones the summoning of the accused and orders an inquiry or investigation into the complaint. It has been forcefully represented to us by the Chief Justice of a High Court that Magistrates find it difficult that stage of record their reasons, we are inclined to agree. One reason why a Magistrate may be reluctant to issue process against the accused can be that he feels doubtful about the value of the complainant's statement and the few witnesses produced by him. It would be clearly embarrassing for him to say so in writing at that stage. Nor we see any real purpose that can be served by any expression of judicial opinion at that stage.”

24. In Umer Ali v. Safer Ali (supra), the Division Bench of this Court in connection with criminal reference held that the learned Magistrate is not competent to refuse to take cognizance of an offence on receipt of a complaint of facts constituting an offence, but he is rather bound to examine the complainant. He can then proceed to issue summons on the accused or to order an enquiry under section 202 or to dismiss the complaint under section 203.

25. In Bhinka v. Charan Singh (supra), three-Judges Bench of Hon'ble Supreme Court in connection with interpretation of statute, held at para 15:

“The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps the Court to resolve that doubt.”

26. In Martins v. Fowler (supra), the Privy Council while considering the scope of section 39 of the Marriage Ordinance, 1884 (Laws of Southern Nigeria) held that the construction was supported by a consideration of the headings to the sections, which might be regarded as preambles to the provisions following them.

27. In Corporation of the City of Toronto and Toronto Railway Company (supra), similar view was expressed by the Privy Council.

28. Learned Advocate General also submitted written arguments and the main contention of the learned Advocate General appearing for the petitioners is that the provision of section 202 is applicable only in cases where the Magistrate postpones the issue of process as appearing in the heading to section 202 of the Code. He supported his submission that heading to the section is relevant and material for considering the scope of the section as held by various judicial pronouncements by Apex Court and the Privy Council as highlighted above.

29. It is further contended by learned Advocate General that any other view will create a situation which is not sanctioned by law. For example, even if the learned Magistrate after examination of witnesses under section 200 of the Code is of the view that there is no prima facie material to proceed against the accused persons by issuing process under section 204 of the Code and the complaint case is liable to be dismissed in terms of provision under section 203 of the Code, then also the learned Magistrate is bound to enter into the field of section 202, even though he is not inclined to postpone the issue of process and entered into the field of further enquiry or investigation as the case may be.

30. It is further contended by learned Advocate General that object and reasons of the amendment to section 202 of the Code as appearing in clause 19 shall be altogether ignored if a narrow view is taken that in all cases the moment it is found that one or more of the accused persons are residing outside the territorial jurisdiction of the Court then an enquiry under section 202 of the Code is mandatory. There may be cases where the accused persons will be residing immediately outside the jurisdiction of the Code then also the Magistrate is bound to enquire in terms of provision under section 202 of the Code. The specific submission in connection with the present case appears to be based on the contention that all the accused persons are residing within the area of Calcutta Municipal Corporation, while Calcutta Metropolitan Area is somewhat shorter than the area falling under Calcutta Municipal Corporation. Even a street or a footpath separates the area to Calcutta Municipal Corporation and Calcutta Metropolitan Area.

31. It is further contended that several decisions of Supreme Court as referred to by learned Advocate General indicate that while interpreting Statute the Court is required to consider the entire scope of the provision specially in connection with other provisions of the Code. Mere interpretation of the word ‘shall’ and then to decide that the word by itself indicates the obligation on the part of the Court may defeat the very purpose for which the clause is introduced.

32. Shri Pradip Ghosh, learned Senior Counsel appearing for the opposite parties submitted in support of the order under challenge passed by the learned Chief Judge, City Sessions Court.

33. Learned Senior Counsel for the opposite parties also filed written argument and referred to various decisions in support of his contention:

1. State of Uttar Pradesh v. Radhey Shyam Nigam, reported in 1989 (1) SCC 591.

2. Shri Balaganesan Metals v. M.N Shanmugham Chetty, reported in 1987 (2) SCC 707.

3. D.R Fraser and Co. Ltd. v. Minister of National Revenue, reported in AIR (36) 1949, Privy Council 120.

4. Mahaluxmi Rice Mills v. State of U.P, reported in 1998 (6) SCC 590.

5. Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam v. Union of India, reported in 1990 (3) SCC 440.

6. Jaywant S. Kulkarni v. Minochar Dosabhai Shroff, reported in 1988 (4) SCC 108.

7. A.R Antulay v. Ramdas Sriniwas Nayak, reported in 1984 (2) SCC 500.

8. Jamatraj Kewalji Govani v. State Of Maharashtra, reported in AIR 1968 SC 178.

9. Labour Commissioner, Madhya Pradesh v. Burhampur Tapti Mills Ltd., reported in AIR 1964 SC 1687.

10. Parshotam Lal Vadera… v. Satyanarayan Sadangi…Opp. Party., reported in 2008 (1) E Cr. 11 292.

34. In State of Uttar Pradesh v. Radhey Shyam Nigam (supra), two-Judges Bench of Hon'ble Supreme Court held that it is the job of the Court to interpret the intention of the legislature by the words used. The fairest and the most rational method to interpret the will of the legislature is by exploring its intentions at the time when the law was made by signs, the most natural and probable. These signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. The words have to be understood in their usual and most known signification.

35. In Shri Balaganesan Metals v. M.N Shanmugbam Chetty (supra), the two-Judges Bench of Hon'ble Supreme Court while interpreting the provision of T.N Buildings (Lease and Rent Control) Act, 1960 held:

“The provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency.”

36. In D.R Fraser and Co. Ltd. v. Minister of National Revenue (supra), the Hon'ble Privy Council while interpreting the scope of amendment in principal statute held that when an amendment Act alters the language of the principal statute the alteration must be taken to have been made deliberately.

37. In Mahaluxmi Rice Mills v. State of U.P (supra), the three Judges Bench of Hon'ble Supreme Court while interpreting the words “may” and ‘shall’ appearing in sub-section (3) of section 17, (III) (b) in U.P Krishi Utpadan Mandi Adhiniyam, 1964 held at para 9, which is set out below:

‘9. 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 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.’.

38. In Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam v. Union of India (supra), three-Judges Bench of Hon'ble Supreme Court while interpreting section 4 of the Inter-State Water Disputes Act, 1956 held that it was mandatory and obligatory on the part of the Central Government in view of the word “shall” in section 4 to constitute an appropriate Tribunal and refer the dispute to it.

39. In Jaywant S. Kulkarni v. Minochar Dosabhai Shroff. (supra), three-Judges Bench of Hon'ble Supreme Court while interpreting the provision of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, held that in view of the substitution of the words ‘Court shall pass a decree’, in place of words ‘Court may pass a decree’ by the amendment passed in 1963, which made it mandatory to pass the decree. When the legislature had made its intention clear in specific terms, there was no scope to appeal to ‘the spirit of the law’, and not to the strict letter of the law.

40. In A.R Antulay v. Ramdas Sriniwas Nayak (supra), this decision is also referred by learned Advocate General.

41. In Jamatraj Kewalji Govani v. State Of Maharashtra (supra), three-Judges Bench of Hon'ble Supreme Court while interpreting the scope of section 540 of the old Code of Criminal Procedure, took into consideration the use of word ‘may’ in the first part of the section and the use of word ‘shall’ in the second part; held that while under the first part which is permissible, the Court may act in one of the three ways; (a) summon any person as a witness, (b) examine any person present in Court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any of them, of the just decision of the case demands it.

42. In Labour Commissioner, Madhya Pradesh v. Burhampur Tapti Mills Ltd. (supra), three-Judges Bench of Hon'ble Supreme Court while interpreting the provision of the Central Provinces and Berar Industrial Dispute and Settlement Act, 1947 also took into consideration the use of words ‘may’ and ‘shall’ and held at para 8 of the aforesaid decision, which is set out below:

‘8. It has to be noticed that while on a reference by the State Government the State Industrial Court or a District Industrial Court “shall” decide the question of legality of the strike or lockout, it “may” decide the question on an application by the employer or employee or any other person mentioned in the section. The use of the word “shall” in connection with the action to be taken on a reference by the State Government and “may” in connection with the action on an application by others in the same section compel the conclusion that on an application by anybody other than the State Government, the State Industrial Court or a District Industrial Court may also refuse to take action. The suggested construction of the words “rendered illegal” as “held illegal” might therefore have the curious result that even though the strike is in fact illegal within the meaning of section 40 of the Act no action can at any time be taken against an employee for participation in it. We have accordingly come to the conclusion that the words “rendered illegal” does not mean “held illegal” and the employer is free to take action against the employee as soon as he thinks that the strike in which he has participated comes within the provisions of section 40 of the Act.’

43. In Parshotam Lal Vadera… v. Satyanarayan Sadangi…Opp. Party. (supra), learned Single Judge of the Orissa High Court after considering the scope of amended provision of section 202 is of the view that the same being mandatory created an obligation on the part of the Magistrate to enquire into the case himself.

44. The learned Senior Counsel appearing for the opposite parties in his written arguments also highlighted that in connection with the revisional application before the learned Chief Judge, City Sessions Court, the opposite party did not raise any objection. The learned Advocate who appeared for the petitioner herein before the learned Court below frankly conceded that the learned Advocate for the petitioners herein failed to draw the attention of the learned Magistrate about the amended provision of section 202 of the Code and conceded that the matter may be remitted back to learned Magistrate in order to cause necessary enquiry in terms of amended provision of section 202 of the Code.

45. It is further contended that in view of the concession made before the learned Court below by the learned Advocate for the petitioner there is no scope for the petitioner to re-agitate the matter before this Court in connection with the present revisional application.

46. The learned Senior Counsel also drew attention to the notes on clause with regard to the amendment of section 202 and is of the view that the notes on clause is sufficiently indicative that the amended provision is mandatory, creating an obligation on the part of the Magistrate to conduct necessary enquiry, when it is found, that accused is residing outside the jurisdiction of the Court.

47. It is further submitted that the language of section 202, which used the expression ‘may’ followed by ‘shall’ makes itself amply clear that legislature has intended by way of such amendment to create an obligation on the part of the Magistrate to conduct necessary enquiry, in cases, where the accused resides outside the territorial jurisdiction of the Court.

48. In view of the rival contentions by the learned Senior Counsels appearing for respective parties, this Court is required to decide the scope and object of amended provision of section 202 of the Code as highlighted above.

49. Section 202 of the Code falls under Chapter XV of the Code, which deals with complaints to Magistrates.

50. The word ‘complaint’ is defined under clause (d) to section 2 of the Code which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

51. In terms of provision under section 190(1)(a) of the Code, the Magistrate is required to take cognizance on the petition of complaint. It is evident from the combined reading of section 2(d) of the Code read with section 190 (1) (a) of the Code that on receipt of the complaint the Magistrate is required to take cognizance in order to ascertain whether the recital in the petition of complaint discloses commission of offence by persons whether known or unknown.

52. Section 200 to section 203 falls under Chapter XV which deals with the procedure as to how a complaint presented before the Magistrate and on which cognizance is taking by the Magistrate shall be dealt with by him.

53. Section 200 of the Code prescribes that Magistrate taking cognizance shall examine upon oath the complainant and the witnesses present. Such examination may be dispensed in cases of public servant acting or purporting to act in the discharge of his official duties or in cases where the Court has made the complaint.

54. Section 201 of the Code deals with the procedure by Magistrate not competent to take cognizance of the case. There may be cases where the Magistrate finds that he lacks territorial jurisdiction over the place of occurrence or where the learned Magistrate finds that the complaint in its original is required to be presented before a superior Court. In such contingency, the complaint is required to be returned, so that it may be presented before appropriate Court.

55. Section 202 deals with postponement of issue of process, while section 203 deals with dismissal of complaint.

56. The question now arises is whether in view of the amendment in section 202 effected by Act 25 of 2005, it is mandatory on the part of the Magistrate in cases where he finds that one or more accused persons are residing outside the jurisdiction of the Court to conduct an inquiry in terms of amended provision of section 202, before issuing process against such accused.

57. The amendment to section 202 as incorporated by Act 25 of 2005 was codified by the legislature after taking into consideration about institution of false complaint filed against persons residing at far off places in order to harass them. The notes on clause explaining the objects and reasons of 2005 amendment is set out below:

“Objects and Reasons of 2005 amendment.—False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall inquire into the case himself or direct investigation to be made by a police person by such other person as he thinks fit, finding out whether or not there was sufficient ground for proceeding against the accused, (notes on clause).”

58. On perusal of the notes on clause explaining the Objects and Reasons of 2005 amendment, it is evident that legislature took into consideration the trend of lodging false complaint instituted only by unscrupulous persons to harass innocent persons who are residing at far off places.

59. The intention of the legislature is to accord some protection to the persons who are residing at far off places whereby he is dragged into criminal cases in order to harass. While interpreting the provision of section 202, the object which was taken into consideration by the legislature may not be overlooked. No doubt it casts an obligation on the part of the Magistrate to conduct necessary inquiry in cases where he finds that all or any of the accused persons are residing outside the jurisdiction of the Court.

60. The question now arises whether the amendment by itself makes it obligatory on the part of the Magistrate to enter into the field of section 202, even if, he is satisfied after examination of complainant and his witnesses in terms of provision under section 200 of the Code that a prima facie case is made out against the accused persons. It may be pointed out that subjective satisfaction on the part of the learned Magistrate about prima facie case to call upon the accused persons to face trial. At this stage the Magistrate is not required to examine, whether evidence is sufficient to convict the accused.

61. Careful perusal of the language appearing under section 200 vis-a-vis section 203 of the Code makes it abundantly clear that the Magistrate is empowered to dismiss a complaint after considering the statement on oath (if any) of the complainant and the witnesses recorded under section 200 of the Code.

62. This power of the Magistrate, in my view, is not controlled by the language of section 202 of the Code as originally framed or even under the amended provision of section 202.

63. Comparative study of section 200 read with section 202 of the Code makes it abundantly clear that section 202 comes into operation only in cases where there is “postponement of issue of process”. Such postponement of issue of process would be necessary only in cases where the learned Magistrate even after recording the evidence of complainant and his witnesses, is not sure whether to issue process in terms of section 204 of the Code or to dismiss the complaint under section 203 of the Code. In other words when the materials placed before the Magistrate under section 200 is according to the view of learned Magistrate is not complete in order to take action either to dismiss the complaint under section 203 or to issue process under section 204, then and then only, he may enter into the field of section 202 and cause such further inquiry as is necessary in order to decide the issue on the complaint which is presented before him for necessary consideration in terms of Chapter XV of the Code.

64. The language of section 203, ‘and the result of the inquiry or investigation (if any) under section 202’, makes it abundantly clear that only in cases where such inquiry was conducted by the learned Magistrate in terms of provision under section 202 of the Code, then he is also empowered to dismiss the complaint in terms of section 203 of the Code.

65. In cases where the issue of process was not postponed, that the Magistrate after taking evidence in terms of section 200 of the Code is satisfied to dismiss the complaint then the law never mandates or makes it obligatory upon him to enter into the provision under section 202 of the Code. It is not clear to me as to why the Magistrate must be held to be compelled to cause further inquiry in terms of section 202, if he is satisfied after taking evidence under section 200 that a prima facie case is made out against the accused persons who are residing outside his jurisdiction and to issue process against them in terms of section 204 of the Code.

66. In this connection it may be pointed out that the duty of the Court exercising criminal jurisdiction is to inquire into and try offences committed by person or persons, provided the same has taken place within his territorial jurisdiction. The limit as to territorial jurisdiction of the Magistrate in my view does not restrict him to proceed with the case provided he has jurisdiction over the subject-matter of the offence. In this connection, if one looks into the language of the section 462 of the Code, it would be seen that proceeding in wrong place cannot be a ground to set aside any finding, sentence or order of any Criminal Court save and except in cases where such error has occasioned a failure of justice.

67. So far as the present matter is concerned the question as to lack of territorial jurisdiction of the learned Magistrate in connection with the offence does not arise. Here again the question is the special protection given to the accused persons residing outside the jurisdiction of the Code consequent to amendment of section 202.

68. The language of section 202 as amended cannot be stretched or extended to such a degree which in its turn may defeat the very purpose for which Chapter XV of the Code is incorporated. There is nothing to show in the language of section 202 of the Code, as originally framed, or even after amendment, that the same overrides the provision of section 200 of the Code and the Magistrate, in view of amended provision of section 202, is compelled to postpone issue of process under section 204 or to dismiss the complaint under section 203 of the Code. In other words the language of amended provision of section 202 cannot be read in such a way separating it altogether from the language of section 200 and section 203. There is nothing in section 202 or in the amended provision which controls the language of section 200 of the Code. The amendment was effected and applies only in cases where the issuance of process against the accused persons are postponed by the learned Magistrate.

69. It may be pointed out that postponement of issue of process by the Magistrate is not mandatory or obligatory. The language of section 202 as originally framed used the word, “may” if he thinks fit. This language of section 202 clearly indicates that Magistrate has discretion to enter into the field of section 202 and there is no compulsion on the part of the Magistrate that he must enter into the field of section 202 after recording the evidence under section 200 of the Code.

70. Needless to add if the learned Magistrate enters into the field of section 202 then and then only he must conduct the necessary inquiry in case of accused who are residing outside the jurisdiction of the Code.

71. The language of the original section using the word ‘may’ is not changed by the subsequent amendment effected under Act 25 of 2005. The discretion to enter within the purview of section 202 of the Code still remains with the Magistrate. If the learned Magistrate does not think it fit to enter into an inquiry within the purview of section 202 of the Code and decide the matter after considering the evidence under section 200 of the Code then my view no illegality can be said to have been committed by the learned Magistrate. In other words I am not in agreement with the submission that in view of the amendment of section 202, it is compulsory on the part of the Magistrate to make necessary inquiry under section 202 after examining the witness under section 200 of the Code.

72. It is pertinent to point out that the language of section 203 of the Code makes it amply clear that there is no such compulsion on the part of the Magistrate to conduct further inquiry under section 202 even though, he is satisfied about the fate of the complaint case after examining the complainant and witness under section 200 of the Code.

73. The legal position as highlighted above is clearly indicative that postponement of issue of process under section 202 is not compulsory and still remains at the discretion of the Magistrate.

74. It may be pointed out in this context that section 202 prescribes procedure.

75. In this connection the observation made by Hon'ble Supreme Court in Sushil Kumar Sen v. State Of Bihar, reported in AIR 1975 SC 1185, is very relevant. The Hon'ble Supreme Court held:

“The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito jusiitiae where the tragic sequel otherwise would be wholly inequitable…. justice is the goal of jurisprudence - processual, as much as substantive.”

76. Similarly in State of Punjab v. Shamlal Murari, reported in AIR 1976 SC 1177, the Hon'ble Supreme Court held:

“Processual law is not to be tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”

77. It may be borne in mind that while interpreting the provision of statute the Court may not adopt such approach which instead of advancing the cause of justice acts as hindrance leading to manifest absurdity or futility.

78. In American Home Products Corporation v. Mac Laboratories Pvt. Ltd., reported in AIR 1986 SC 137, the Hon'ble Apex Court held:

“It is well-known principle of interpretation of statute that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly”.

79. So far as the present case is concerned, I cannot be unmindful to the submission made by learned Advocate General that three accused persons as noted above moved the Chief Judge, City Sessions Court in connection with revisional application on the ground that they are residing outside the territorial jurisdiction of the Code. Petitioner Sushil Kumar Daga is a resident of New Alipore within Calcutta. Petitioner Krishna Damani is a resident of Syed Amir Ali Avenue, Calcutta and petitioner Umesh Verma is a resident of Santoshpur, which also falls within the area of greater Calcutta. There is force in the argument advanced by learned Advocate General that legislature never intended the application of amended provision of section 202, in such a way that even in cases where the residence of the petitioner is outside the jurisdiction of the Court either by a footpath or by a street, then also the learned Magistrate is bound to enter into the field to section 202 of the Code. Such hypertechnical approach would amount to defeat the entire amended provision of section 202. The word ‘far off places’ as appearing in the notes on clause clearly indicates that learned Magistrate shall apply his mind only where he finds that accused is residing far away from the territorial jurisdiction of the Court. Such consideration the Magistrate is required to make when he has examined the evidence adduced under section 200. But if the learned Magistrate is of the view that this is not a fit case to enter into the field of section 202 of the Code; then the language of section 202 does not make it obligatory on him to hold further inquiry under section 202 of the Code.

80. Non-compliance of the procedural law by itself cannot be visited with any consequence unless such consequence is prescribed by the legislature.

81. I have already pointed out that the application of section 202 is discretionary and when the law has not demanded or make it obligatory on the part of the Magistrate to enter into such inquiry as provided under section 202 then in my view non-compliance of the same cannot and does not call for any interference. If the learned Magistrate has not exercised his discretion or did not think it necessary to enter into further inquiry in terms of section 202 then there is no language either in section 200 or section 202 which compels him to do so.

82. In this connection I must point out section 461 of the Code stipulates irregularities which vitiate proceedings. The matter falling under the said section clearly indicates that violation or non-compliance of the same shall make the enter proceeding void. Non-compliance of amended provision of section 202 of for that matter non-compliance of section 202 does not find place in section 461. In other words the non-compliance of amended provision under section 202 of the Code is not visited with any prescription or consequence, and as such the entire provision of section 202, even after amendment remains discretionary and not obligatory.

83. The language of section 465 of the Code is set out below:

“465. Finding or sentence when reversible by reason of error, omission or irregularity.—(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of Appeal, conformation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”

84. The section as highlighted above further protects error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings.

85. I am highlighting the language of section 465, in view of the fact that non-compliance of procedural matters unless it cast serious prejudice cannot and does not by itself affects a criminal case. Procedure appears as an aid to substantive justice and the substantive justice so far as the Criminal Court is concerned is to decide the commission of offence alleged to have been committed by the accused persons. Over emphasis or over reliance about the compliance of the procedural law may be counter productive and instead of advancing the cause to justice, the same may operate as an hindrance to the cause of substantial justice.

86. The contention by the learned Senior Counsel for the opposite parties that learned Advocate for the petitioner herein has conceded about application of amended provision of section 202 before learned Revisional Court is of no consequence. There can not be any concession on point of law on the principle that consent of parties does not supercede the process of law.

87. In view of my above discussion the issue as to scope and object of amended provision of section 202 is answered as follows:

1. The application of section 202 of the Code is discretionary and the same will come into operation only in cases where the Magistrate in his discretion decides to postpone the issue of process.

2. In cases where the learned Magistrate postpones the issue of process then it is mandatory on his part to inquire in case of accused persons who are residing outside the jurisdiction of the Court.

88. The revisional application is disposed of accordingly. In the result the judgment and order dated 13.11.2006 passed by learned Chief Judge, City Sessions Court in Criminal Revision No. 146 of 2006 is hereby set aside and quashed.

89. The original order directing issuance of process passed by the learned Metropolitan Magistrate in connection with Complaint Case No. 6333 of 2006 dated 4.7.2006 is hereby restored.

90. Learned Court below is directed to proceed with the case as expeditiously as possible.

91. Criminal Section is directed to forward a copy of the order to learned Court below.

92. Criminal section is further directed to supply urgent photostat copy of the order to the parties as and when applied for.

Revisional application disposed of.

B.D