05/01/2022
Hon'ble Rajesh Singh Chauhan,J. of Lucknow Bench of Allahabad High Court in a petition U/s 482 Cr.PC with a prayer for quashing the summoning order dated 31.5.2019 and N.B.W. order dated 1.11.2021 passed by the C.J.M., Lucknow summoning the petitioners in Complaint Case No. 5637/2018 u/s 500,501 IPC, P.S. Gautampalli, District Lucknow as well as entire criminal proceedings of the aforesaid criminal case.
Facts of the case
The petitioner nos. 2 and 3 were the resident of New Delhi and Bangalore respectively. On the complaint filed by opposite party no. 2 the learned C.J.M., Lucknow had summoned all the petitioners vide impugned order dated 31.5.2019. As per learned counsel for the petitioner while summoning the petitioners no. 2 and 3 who are residing outside the territory of the court from where the summoning order has been issued, the learned court-below has committed manifest error of law inasmuch as section 202 Cr.P.C. clearly mandates that in case any accused person is residing at a place beyond the area in which he exercises his jurisdiction, shall postpone the issue of process against the accused and either enquire into the case himself or direct the investigation to be made by the police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings.
For the convenience section 202 Cr.P.C. is being reproduced herein-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, [and shall,in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] 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."
Learned counsel for the petitioner submitted that the aforesaid mandatory condition has been inserted in section 202 Cr.P.C. by Act no. 25 of 2002, w.e.f 23.6.2006. Therefore, before issuing summons, particularly to petitioner nos. 2 and 3 the Magistrate should have enquired into the case himself or should have directed for investigation to be made by the police officer. Since such mandatory exercise has been avoided by the Magistrate while issuing the summoning orders against the petitioner nos. 2 and 3, the impugned order dated 31.5.2019 vitiates and the same is liable to be quashed at the threshold.
In support of his aforesaid contention the learned counsel for the petitioner has drawn attention of this Court towards National Bank of Oman vs. Barakara Abdul Aziz and another (2013) 2 Supreme Court Cases 488 and Vijay Dhanuka and others vs. Najima Mamtaj and others (2014) 14 Supreme Court Cases 638.
On the other hand, Sri Anirudh Kumar Singh, learned AGA submitted that since the learned Magistrate has issued summons against the petitioners including the petitioners no. 2 and 3 who resides outside the territorial limits after making compliance of section 200 and 202 Cr.P.C., therefore, there is no infirmity in the impugned order. He further submitted that the first proviso of section 202 Cr.P.C. clearly mandates that where it appears to the Magistrate that the complaint is triable exclusively by the Court of sessions, no such direction for investigation shall be made by the Magistrate.
He further asserted that in the present case the present petitioners have been summoned for section 500 and 501 IPC and section 500 IPC is triable by sessions court and section 501(a) IPC is also triable by the sessions, therefore, no such direction for investigation could have been issued by the Magistrate.
Opinion of the Court
The Hon'ble Court concluded that there was no infirmity or illegality in the order dated 31.5.2019. In view of the decision of this Court in the case of Udai Shankar Awasthi v. State of Uttar Pradesh, (2013) 2 SCC 435
The next question which was called for consideration by the Hon'ble Court was whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows:
"2.(g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;"
No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 202 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.
In the present case the Magistrate had examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process.
The Court did not find any merit in the appeals and the same were dismissed.
Case :- U/S 482/378/407 No. - 5691 of 2021
Applicant :- Hemant Tiwari & Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home. Lko & Another
Order Date :- 23.12.2021
