This he can do, either by inquiring into the complaint himself or by directing an inquiry or investigation by a subordinate Magistrate or by a police officer or by any other person. The words “such other person” used in the section include an Executive Magistrate also. The Magistrate may disagree with the findings of the inquiry or Investigation so ordered by him.
The Supreme Court has held that the scope of inquiry under Section 202 is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the basis of material placed by the complainant in order to make sure whether prima facie case for the issue of process has made out or not.
The Magistrate has to decide this question purely from the point of view of the complainant without averting to any defence that the accused may take. Thus the accused has no locus standi and has no right to be heard on the question whether the process should be issued against him or not, nor can he raise any objection as to want of sanction under Section 157 etc.
The inquiry or investigation under Section 202 need not be thorough and exhaustive. Again, in a case where the complaint has not been made by a Court, no investigation is to be directed unless the complainant and his witnesses have been examined on oath:
The section further commands that where the case is triable exclusively by a Court of Session under the proviso of Section 202(2), it is mandatory on the part of the Magistrate to call upon the complainant to produce all witnesses and examine them on oath along with the accused. The purpose of this provision is to provide the accused the fullest details about accusations against him and thus enable him to proper for his defence.
The section does not require the presence of the complainant when inquiry under Section 202 is being conducted, especially when he has once already been examined on oath. So also, it would be most unfair to issue notice to the accused person to be present in the inquiry under Section 202. The reason being that accused person does not come into picture until process is issued.
The proceedings under this section are not inter parties and precede the issuance or process against the accused. The words used in sub-section (1) make it clear that the proceedings under this section are to be instituted only when the Magistrate considers it necessary to postpone the issue of process against the accused.
Where a Magistrate directs an investigation by police under Section 202, the police are bound to make a report to the Magistrate about the findings of their investigation. In
P.K. Ramkrishna v. Neelkanth Kamble, the Magistrate, on a private complaint, ordered police investigation, although the statements of the complainant under Section 200, CrPC were recorded. Subsequently, without waiting for the police report, the Magistrate issued process against the accused.
The Bombay High Court quashed the order issuing the process and directed the Magistrate to order the police to submit report within eight weeks and it is only after the receipt of police report, he should decide whether to summon the accused or not.
In case of an offence of dishonour of a cheque under Section 138 of the Negotiable Instruments Act, a complaint may be lodged only by the payee under Section 142 (a) of the said Act and none else. Therefore the Magistrate should take cognizance of the offence only on police reports.
It is mandatory for the Magistrate to examine each and every witness named by the complainant in his complaint. Thus where in a murder case on a complaint, the complainant produced only five witnesses from amongst the witnesses listed by him in his complaint.
The Allahabad High Court held that there was no illegality in summoning the accused as it was the judicial discretion of the Magistrate and Section 202 nowhere mentions that all the listed witnesses must be examined before issuing process against the accused.
In the case of Avertson Paul Fernandiz v. Rabindra Das the Magistrate examined only one witness in a complaint case for an offence exclusively triable by the Sessions Court, and committed the case to Sessions Court.
The Assistant Sessions Judge remanded the case back for recording the statements of all the witnesses thinking that it was a mere irregularity which could be cured. But the High Court of Bombay held that in the absence of examination of all the witnesses listed in the complaint, taking cognizance of the offence by the Magistrate was illegal and the Sessions Court had no power to remand the case back for rectifying the defect as a consequence of which the accused had to be discharged.
It has been held by the High Court of Madhya Pradesh and, the High Court of Calcutta, that non-compliance with the provision to Section 202(2) cannot be treated as a mere irregularity that could be cured under Section 465, CrPC as it is likely to cause great injustice to the accused insofar as he is derived from getting fullest details of the allegations made against him by the complainant and thus denial of full and fair opportunity to defend himself.
But the two judge bench of the Supreme Court in Rosy v. State of Kerala, has, however, held that the omission to follow the provision does not per se vitiate the proceedings unless it is shown that the objection has been raised at a belated stage, when it is to be decided under Section 465 depending on whether it has resulted in miscarriage of justice so far accused is concerned.
The High Court of Bombay in Ashok Mehta v. State of Maharashtra, held that order of the Magistrate issuing process is not an interlocutory order and the aggrieved party has an efficacious alternative remedy of preferring revision against it. Therefore, a writ petition against the order of the Magistrate issuing the process was not maintainable.
The Supreme Court in Shivajee Singh v. Nagendra Tiwari and others, held that examination of all witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202 (2) of Cr. P. C. is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint.
The use of the word ‘shall’ in proviso to Section 202 (2) is prima facie indicative of mandatory character of the provision contained therein, out a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 of Cr. P. C. would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so.
The word ‘all’ appearing in proviso to Section 202 (2) is qualified by the word his’, which implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process.
The choice being of the complainant, he may choose not to examine other witnesses. The Magistrate is also not required to enter into detailed discussion on the merits and demerits of the case. He is only required to see whether there exists sufficient ground for proceeding against the accused.