Calcutta High Court (Appellete Side)
Dinesh Kumar Aggarwal & Anr vs State Of West Bengal & Anr on 6 March, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE UDAY KUMAR
CRR 646 OF 2020
DINESH KUMAR AGGARWAL & ANR.
-VS-
STATE OF WEST BENGAL & ANR.
For the Petitioner s : Mr. Dipanjan Dutt
Mr. Tanmoy Roy
For the Opposite Party No.2 : Mr. Satadru Lahiri
Mr. Niladri Banerjee
Mr. Safdar Azam
Mr. Mili Mondal
Ms. Antara Ganguly
Hearing concluded on : 20.02.2026
Judgment on : 06.03.2026
UDAY KUMAR, J.: -
INTRODUCTION
1. This Court is seized of a revisional application preferred under
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code'), sought the quashing of proceedings in
Case No. CS 106128 of 2018, currently pending before the Learned
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Metropolitan Magistrate, 20th Court, Calcutta. The petitioners, who
occupy high-ranking echelons within a corporate entity, have moved
this Court primarily to challenge the legality of the Order dated
24.12.2019. By virtue of the said order, the Learned Magistrate
directed the issuance of process against them for the alleged
commission of offences punishable under Sections 406, 420, and
120B of the Indian Penal Code, 1860.
2. The essence of the challenge is not anchored in a factual
defense on the merits, but rather in a fundamental procedural
infirmity. The Petitioners contend that the summoning order is a
legal nullity due to non-compliance with the mandatory
requirements of Section 202 of the Code, asserting that the
underlying police inquiry was conducted by an officer not expressly
authorized or named by the Learned Magistrate, thereby vitiating
the jurisdictional foundation of the summons.
BACKGROUND FACTS
3. The genesis of the litigation lies in a commercial transaction
involving the supply of electrical goods. The complainant/opposite
party no. 2 alleges that several cheques issued as “security” during
the inception of the business relationship were fraudulently
retained. It is alleged that the petitioners, with dishonest intent,
presented one such cheque for encashment despite being formally
intimated that the underlying bank account had been closed years
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prior. The cheque was returned with the remark ‘Account Closed,’
leading to the filing of the instant complaint.
4. Upon receipt of the complaint, the Learned Magistrate took
cognizance and initiated proceedings under Chapter XV of the Code.
On 02.04.2019 and 23.04.2019, the Magistrate examined the
Complainant and an independent witness, Madan Kumar Bose, on
Solemn Affirmation (S.A.) to verify the veracity of the allegations.
5. Since the petitioners/accused admittedly reside in Mumbai–
beyond the territorial jurisdiction of the Learned Metropolitan
Magistrate, Calcutta–the mandatory proviso of the 2005
Amendment to Section 202 of the Code was triggered.
Consequently, the Learned Magistrate postponed the issuance of
process and directed the Officer-in-Charge (O.C.) of Hare Street
Police Station to conduct an investigation.
6. On 10.12.2019, a report was submitted to the Court.
However, the record reveals a procedural schism: the actual field
inquiry was conducted by a Sub-Inspector (S.I.) or Assistant Sub-
Inspector (A.S.I.), while the O.C. merely acted as a conduit,
forwarding the report under his official signature without personally
conducting the inquiry as directed. On 24.12.2019, the Learned
Magistrate, perusing both the oral evidence on oath and the police
report, recorded his satisfaction and issued the impugned
summons.
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SUBMISSIONS OF THE PARTIES – ON BEHALF OF THE
PETITIONERS:
7. Mr. Dipanjan Dutta, Learned Counsel for the petitioners
submitted that the summoning order is ex-facie illegal and suffers
from a fundamental jurisdictional error. It is contended that since
the Petitioners reside in Mumbai–admittedly beyond the territorial
jurisdiction of the Learned Metropolitan Magistrate, Calcutta–the
mandate of the 2005 Amendment to Section 202 of the Code of
Criminal Procedure is absolute. It is argued that the postponement
of process and the conduct of an inquiry is a “sine qua non” for
proceeding against outstation accused. Mr. Dutt placed heavy
reliance on the doctrine of delegatus non potestdelegare, asserting
that a specific judicial entrustment to an O.C. cannot be sub-
delegated. The same has been held by Hon’ble Supreme Court in
paragraph 10 of Krishna Chandra Paul v. Md. Nantu Sk. [1999 SCC
OnLine Cal 271]. It has been stated that :
“The person directed by the Magistrate cannot delegate
his function; if he does so, the delegate acquires no
jurisdiction… the Magistrate is the only competent
authority to decide who shall be the person to reveal the
truth.”
8. It is further stated that the Learned Magistrate acted as a
mere “post office” by accepting a report generated by an
unauthorized officer. Referring to the recent decision in Avik
Majumder v. Anil Kumar Sharma [2025 SCC OnLine Cal 9105], Mr.
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Dutt argued that an inquiry conducted by an unauthorized officer
(by police personnel other than the one specifically named in the
order) did not constitute an “inquiry” in the eyes of the law, thereby
rendering the Magistrate’s satisfaction a fruit of a poisonous tree.
This procedural lapse vitiates the order of summons.
9. Consequently, the petitioners seek the quashing of the
proceedings on the ground that a mandatory statutory safeguard
has been reduced to an empty formality.
ON BEHALF OF OPPOSITE PARTY NO. 2:
10. Reverting to the contentions of the petitioners, Mr. Satadru
Lahiri, Learned Counsel for the complainant countered the
application, characterizing it as an attempt to stifle a legitimate
prosecution via hyper-technicalities. It is argued that the Magistrate
satisfied the statutory mandate of Section 202 by examining a
second witness, Madan Kumar Bose, on Solemn Affirmation. Mr.
Lahiri relied upon Vijay Dhanuka v. Najima Mamtaj [(2014) 14 SCC
638], where the Hon’ble Supreme Court held at paragraph 14:
“The word ‘shall’ in Section 202… makes it obligatory
upon the Magistrate to enquire into the case himself or
direct an investigation… The examination of witnesses
by the Magistrate himself is nothing but an inquiry
envisaged under Section 202.”
11. It is contended that since an independent inquiry was held by
the Magistrate /Court, the requirement for out-of-jurisdiction
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accused was fully satisfied, and the police report was merely
corroborative. It does not vitiate the Magistrate’s independent
satisfaction.
12. Furthermore, Mr. Lahiri relied on Smt. Nagawwa v. Veeranna
Shivalingappa Konjalgi [(1976) 3 SCC 736] to emphasize that at the
stage of Section 202, the petitioner/accused has absolutely no locus
standi to challenge the “mode” of inquiry when they have no right
to participate in it.
13. Furthermore, under Section 465 of the Code, no order is
reversible for a technical irregularity unless it has occasioned a
“failure of justice.” In the instant case, the Petitioners have failed to
show any prejudice caused by the rank of the officer who verified
the bank records.
QUESTIONS FOR DETERMINATION
14. Having mulled over the rival contentions and scanned the Trial
Court Records, this Court identifies the following pivotal questions
for determination for proper disposal of this revision:
A. Whether the examination of an independent witness
(Madan Kumar Bose) by the Learned Magistrate,
subsequent to the Complainant’s examination, constitutes
a valid “Inquiry” under the first limb of Section 202(1),
thereby fulfilling the mandatory requirement for out-of-
jurisdiction accused?
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B. Whether the delegation of the field inquiry by the O.C.
to a subordinate officer constitutes an impermissible sub-
delegation that vitiates the report, or whether it is a
curable irregularity?
C. Whether the summoning order can be sustained
independently based on the oral evidence recorded on oath
by the Magistrate?
DISCUSSIONS AND FINDINGS
THE MANDATORY NATURE OF SECTION 202 AND THE
“INQUIRY” THRESHOLD:
15. The core of the controversy lies in whether the summoning
order dated 24.12.2019 is vitiated by a jurisdictional error. It is a
matter of record that the Petitioners reside in Mumbai, beyond the
territorial jurisdiction of the Learned Trial Court, necessitating the
invocation of the 2005 Amendment to Section 202 of the Code. The
legislative intent behind this amendment is no longer res integra. As
observed by the Hon’ble Apex Court in Vijay Dhanuka v. Najima
Mamtaj [(2014) 14 SCC 638] at Paragraph 12:
“The use of the word ‘shall’ in Section 202 CrPC… is a
safeguard to see that innocent persons are not harassed by
unscrupulous persons by filing false complaints… especially
when the accused is staying at a far-off place.”
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16. However, the mandate is not restricted to a “Police
Investigation” alone. Indubitably, the 2005 Amendment to Section
202 Cr.P.C makes it obligatory for a Magistrate to “postpone the
issue of process” and conduct an inquiry or investigation where the
accused resides beyond his jurisdiction.
17. It is imperative to note that the mandate of Section 202 is not
restricted to a “Police Investigation” alone. The statute provides
three distinct conduits for the Magistrate to reach a state of prima
facie satisfaction: (i) Inquiry by the Magistrate himself; (ii)
Investigation by a police officer; or (iii) Investigation by such other
person as the Magistrate thinks fit.
SUB-DELEGATION VS. JUDICIAL INQUIRY BY THE
COURT:
18. The petitioners have anchored their challenge on the bedrock
of delegatus non potestdelegare, placing heavy reliance on Krishna
Chandra Paul v. Md. Nantu Sk. and the recent Avik Majumder v. Anil
Kumar Sharma. In Avik Majumder, the Court quashed a summoning
order because the Magistrate had delegated the inquiry to a specific
officer, but the report was prepared by a subordinate without the
Magistrate’s own inquiry.
19. I find the facts of the present case to be fundamentally
distinguishable from the aforementioned precedents. In both
Krishna Chandra Paul and Avik Majumder, the Magistrates had
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issued process solely on the basis of a procedurally defective police
report. In the case at hand, the record reveals a significant factual
departure. On 23.04.2019, the Learned Magistrate examined not
only the complainant but also an independent witness, Madan
Kumar Bose, on Solemn Affirmation. Under Section 2(g) of the
Code, “Inquiry” means every inquiry, other than a trial, conducted
by a Magistrate. By examining an additional witness to verify the
truth of the complaint, the Learned Magistrate had already
commenced and substantially completed an independent inquiry
under the first limb of Section 202(1) before even directing a police
report.
THE POLICE REPORT AS CORROBORATIVE
SURPLUSAGE:
20. The direction to the O.C., Hare Street P.S., was an act of
“abundant caution” by the Learned Magistrate to corroborate the
witness’s testimony regarding the “Account Closed” status of the
bank account. While the field inquiry was conducted by an ASI and
forwarded by the O.C., this does not collapse the foundation of the
Magistrate’s satisfaction. This case establishes that a faulty police
report cannot “un-satisfy” a Magistrate’s mind if that satisfaction
was already anchored in judicial evidence recorded under the first
limb of Section 202(1). The satisfaction was anchored in the oral
evidence recorded on oath. To quash a proceeding where the
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Magistrate has already held a judicial inquiry would be to elevate
form over substance.
THE SHIELD OF SECTION 465 AND THE ABSENCE
OF PREJUDICE:
21. Procedure is the “handmaiden of justice.” Section 465 of the
Code, which dictates that no order of a competent Court shall be
reversed on account of any “error, omission or irregularity” unless it
has occasioned a “failure of justice.”
“…no finding, sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered… on
account of any error, omission or irregularity… unless in
the opinion of that Court, a failure of justice has in fact
been occasioned.”
22. In the instant case, the petitioners have failed to demonstrate
any substantive prejudice. They do not contest the factual accuracy
of the bank account being closed; rather, they merely challenge the
“rank” of the officer who verified that fact. Such hyper-technicality
cannot be allowed to shield an accused from trial, particularly when
the records prima facie disclose the ingredients of Section 420
(Cheating)–specifically the dishonest inducement by presenting a
defunct security cheque–and Section 406 (Criminal Breach of
Trust).
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THE PROCEDURAL VS. SUBSTANTIVE CLEARANCE:
23. It is pertinent to observe that as the parties did not advance
extensive arguments on the core ingredients of Sections 406, 420,
and 120B of the IPC, this Court has not “cleared” the case on its
merits. The findings of this Court are strictly confined to the legality
of the process by which the accused were summoned. By granting
liberty to the petitioners to challenge the merits at a later stage,
such as at the stage of Framing of Charges, the Court ensures that
the petitioners are not prejudiced by a “technical” loss at this
revisional stage.
LIMITATIONS OF REVISIONAL JURISDICTION:
24. The High Court, while exercising its revisional jurisdiction,
must resist the temptation to act as a Trial Court. Since the merits
of this case involve “disputed questions of fact”–including the
intent behind the presentation of the cheque–these are matters
best left to the wisdom of the Trial Magistrate. Granting liberty to
raise these issues ensures the Trial Court understands that this
Court’s dismissal was limited to the “defective process” argument
and does not constitute a judicial endorsement of the criminal
allegations themselves.
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PRESERVATION OF THE RIGHT TO SEEK DISCHARGE:
25. If the petitioners subsequently produce evidence suggesting
the dispute is purely civil or that the essential ingredients of
cheating are absent, they reserve the right to move for discharge
under Section 239 or 245 of the Code (depending on the nature of
the case). Without explicitly clarifying that the merits remain open,
a subordinate court might inadvertently conclude that this Court has
already validated the charges, thereby causing a failure of justice.
MERITS OF THE OFFENCE AND DISPUTED FACTS
26. As the parties chose to restrict their submissions to procedural
vires, this Court refrains from an in-depth analysis of the penal
ingredients of Sections 406, 420, and 120B IPC. The allegations
involve a complex commercial transaction and the subsequent
return of a cheque marked “Account Closed.” Whether the
petitioners possessed the requisite mens rea or whether the dispute
resides exclusively within the domain of civil law are quintessential
“disputed questions of fact.” Such matters cannot be adjudicated
within the limited prism of a Section 482 revision; they necessitate
a trial on evidence, which is the exclusive province of the Trial
Court.
27. As the parties chose not to submit arguments on the
ingredients of Sections 406, 420, and 120B IPC, this Court refrains
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from an in-depth analysis of the same. The allegations involve a
commercial transaction and the subsequent return of a cheque
marked “Account Closed.” Whether the petitioners possessed the
requisite mens rea or whether the dispute is purely civil in nature
are quintessential “disputed questions of fact.” Such matters cannot
be adjudicated within the limited prism of a Section 482 revision.
They require a trial on evidence, which is the exclusive domain of
the Trial Court.
CONCLUSIONS ON QUESTIONS OF LAW
28. Based on the exhaustive discussions above, this Court arrives
at the following conclusions:
a. On the Validity of the Inquiry: YES. The examination of
the independent witness, Madan Kumar Bose, on
23.04.2019, subsequent to the complainant’s
examination, constitutes a valid and complete “Inquiry”
by the Magistrate himself under the first limb of Section
202(1) of the Code. Once the Magistrate conducts such
a judicial inquiry, the mandatory requirement for out-of-
jurisdiction accused is legally satisfied, regardless of any
subsequent police investigation.
b. On the Legality of Sub-Delegation: The sub delegation is
irregular but not fatal. While the Officer-in-Charge
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(O.C.) technically sub-delegated the field inquiry to a
subordinate (S.I./A.S.I.), the act of the O.C. forwarding
the report under his official signature constitutes implied
adoption and authentication. In this specific factual
matrix–where the report was merely corroborative of a
witness’s testimony already recorded by the Court–the
sub-delegation does not amount to a jurisdictional error
that would vitiate the summons. A technical irregularity
in a corroborative police report (sub-delegation) does
not vitiate the summoning order if the Magistrate has
independently applied his mind to the statements
recorded on Solemn Affirmation (S.A.).
c. On the Curability of the Irregularity: YES. Procedural law
should facilitate substantive justice. The alleged
discrepancy in the rank of the inquiring officer is a
curable irregularity under Section 465 of the Code.
Since the petitioners did not dispute the “Account
Closed” status (the fact verified by the officer), no
“failure of justice” or “prejudice” has been
demonstrated. Consequently, the summoning order
remains robust. In such event, the High Court shall not
exercise its revisional jurisdiction to quash a summons
issued on a prima facie under the first limb of Section
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202(1) CrPC. disclosure of offences under Sections
d. On the Sustainability of the Order: YES. Even if the
police report were to be discarded in its entirety as
procedurally defective, the summoning order is fully
sustainable based solely on the oral evidence recorded
on oath by the Learned Magistrate under Sections 200
and 202 of the Code.
FINAL ORDER AND DIRECTIONS
29. In the light of the legal propositions set out hereinabove, I
find that the pre-summoning process followed by the Learned
Metropolitan Magistrate, 20th Court, Calcutta, is legally sound and
does not warrant interference under the inherent jurisdiction of this
Court. The petitioners’ attempt to short-circuit the trial on a
technicality must fail. Therefore, revision is, therefore, liable to be
dismissed.
30. Accordingly, it is ordered:
(i) The Revisional Application, CRR No. 646 of 2020, is
hereby dismissed.
(ii) The impugned Order dated 24.12.2019 and all
subsequent proceedings in Case No. CS 106128 of
2018 are stayed no longer.
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(iii) The Learned Trial Court is directed to proceed with
the trial in accordance with the law and conclude the
same as expeditiously as possible.
(iv) Since this Court has exclusively adjudicated upon the
procedural validity of the summoning process, the
merits of the allegations under Sections 406, 420,
and 120B of the IPC remain untouched. The
petitioners are granted liberty to raise all contentions
regarding the civil nature of the dispute or the
absence of criminal ingredients at the stage of
Framing of Charges.
(v) The petitioners are directed to appear before the
Learned Trial Court within four weeks from today to
participate in the proceedings.
(vi) The Learned Trial Court shall proceed with the matter
independently and on its own merits, without being
influenced by any observations made herein, which
are strictly limited to the regularity of the
summoning process.
31. Let a copy of this judgment be transmitted to the Learned
Metropolitan Magistrate, 20th Court, Calcutta, for immediate
information and compliance.
32. There shall be no order as to the cost.
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33. All consequential interim order/orders, if any, shall stand
vacated.
34. The Trial Court Record (TCR), if any, shall be sent down to the
Trial Court, at once.
35. Case diary, if any, be returned forthwith.
36. Urgent Photostat certified copy of this judgment, if applied
for, be given to the parties, as expeditiously as possible, upon
compliance with the necessary formalities in this regard.
37. Parties to act on a server copy of this order.
(Uday Kumar, J.)