Allahabad High Court
Sachin Dahiya And 2 Others vs State Of U.P. And Another on 17 February, 2020
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 67 A.F.R. Case :- APPLICATION U/S 482 No. - 4191 of 2020 Applicant :- Sachin Dahiya And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Naveen Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi J.
[1] Heard Shri Naveen Tiwari and Sri Prashant Manchanda, learned counsels for the applicants and learned A.G.A. and perused the record.
[2] This is an application under section 482 Cr.P.C. filed by learned Counsels for the applicants. After hearing the arguments at length, learned counsel has raised certain vital legal issues emanating from perusal of the impugned summoning order dated 02.05.2019 passed by learned Additional Chief Judicial Magistrate, Room No. 12, Baghpat in Complaint Case No. 710/2018 U/s 406 I.P.C.
[3] Learned counsel for the applicant has pointed out serious legal fallacy and flaws in the impugned summoning order dated 02.05.2019 as the same is in direct and stark defiance of the true spirit of Section 202(1) of Cr.P.C., thus, the Court proposes to evaluate the submissions of learned counsel for the applicant and decide the issue at the admission stage itself.
[4] Before discussing the legal aspect of the issue, it is imperative to give a brief factual insight of the case so as to appreciate the controversy involved in its correct legal perspective;
[5] The applicants have invoked extraordinary jurisdiction of this Court under section 482 Cr.P.C., by challenging summoning order dated 02.05.2019 passed by the Additional Chief Judicial Magistrate, Room No. 12, Baghpat in Complaint case filed by opposite party no.2 In re: Sureshwati Vs. Kadam Singh Dahiya and others in Complaint Case No. 710/2018 U/s 406 I.P.C., Police Station Binolli, District Baghpat and the entire proceeding of Complaint Case including the non-bailable-warrants dated 02.01.2020 against the accused/applicants procuring their attendance to face the prosecution under section 406 IPC.
[6] Applicant no.1, Sachin Dahiya is the husband of Ms. Priya (hence deceased) and applicant nos.2 and 3 are the father-in-law and mother-in-law respectively of the deceased daughter-in-law. From the title of the case, it is explicitly clear that all the applicants permanently reside at D-41, Ashoka Road, Adarsh Nagar, Delhi. During their stay at Delhi, applicant no. 1 got married with daughter of opposite party no.2 on 28.11.2014 at Delhi itself.
[7] Learned counsel for the applicants submits that after camouflaging her real address, opposite party no.2 initiated the present criminal case at Baghpat, projecting that she is permanent resident of District Baghpat and this manipulation was done by her, just to harass the applicants and torpedo the applicants with number of criminal cases against them at different places. It is asserted by the learned counsel for the applicants that the real and permanent address of opposite party no.2 is RZ-C 109, Vinodpuri, Vijay Enclave, Palam Davari Road, Delhi but she has obscured her true and permanent address and just to create the territorial jurisdiction at Baghpat, managed to get the complaint filed at Baghpat judgeship.
[8] After the marriage, the husband and wife started residing at Delhi where the marriage was solemnized but on account of providence on 15.10.2015, Ms. Priya (the wife) under suspicious circumstances queerly died not only untimely but also unnaturally at the residence occupied by applicant no.1. On the same day a first information report No. 654/2015 was got registered under sections 498A, 304B and 34 I.P.C. at Police Station Adarsh Nagar, Delhi and police too after investigation, has submitted its report under section 173(2) Cr.P.C. under the aforementioned sections of Penal Code.
[9] Contentions raised by counsel for the applicants are that neither in the first information report nor during investigation there was any whisper regarding criminal breach of trust or misappropriation of valuable belongings of Ms. Priya, ergo, the police submitted its report under the aforementioned sections of Penal Code. The contention was also raised, that since there was unnatural demise of Ms. Priya, during investigation, the police has also sealed the residential premises, where the said unfortunate incident took place. The applicants are facing prosecution in competent court at Delhi and the trial of the case is at advance stage. It is further contended by the counsel for the applicants that during the trial, on 29.03.2017 the prosecution sought permission of the court, conceding upon which, the apartment was de-sealed and the police, after preparing the inventory of articles, handed over those articles/belongings to deceased's brother.
[10] It is next contended that when the trial is at advance stage, in order to multiply the cases against the applicants and just for the sake of harassment, on 20.12.2018, opposite party no.2 filed present complaint case before the competent Magistrate at Baghpat and in this process to boil up the filth, opposite party no.2 has annexed her old voter I.D. card issued to her in year 1995 to manipulate territorial jurisdiction at Baghpat.
[11] The learned counsel for the applicants has drawn attention of the court to the testimony of opposite party no.2 recorded as PW-18 before Sri Ramesh Kumar, Additional Sessions Judge, Court No.5 (North), Rohini Court, Delhi during the trial of FIR No. 654/2018, In re: State Vs. Sachin. While giving her deposition as PW-18, she introduced herself as Smt. Sureshwati wife of late Shri Raj Kumar Rana resident of RZ-C, 109, Vinodpuri, Palam, Vijay Enclave, Delhi. Thus contended that in the present complaint case, she has mislead the court, by demonstrating wrong address at village Dhanora, Silvar Nagar Police Station Vinolli, Baghpat U.P. for that purpose and it is vigorously contended that the learned Magistrate has probably overlooked this legal fallacy and entertained the said complaint case filed by complainant Ms. Sureshwati, without verifying her correct proper address. Besides this, it is also canvassed that daughter of opposite party no.2 had initiated proceeding before Crime Against Women Cell, (CAW Cell), Delhi in year 2015 wherein a list of articles were furnished by opposite party no.2 and responding to that list, the applicants have already handed over those articles, lying in the sealed flat, during course of trial at Delhi. The learned counsel for the applicants in paragraph no. 18 of the petition has prepared a comparative chart, trying to impress upon the Court, the shifting stands of opposite party no.2. Contentions raised, that before every upcoming forum, she painted new picture and new list of the articles.
[12] This Court while entertaining the instant 482 application ex-parte, is not in position to adjudicate anything on factual merits of the case, with regard to submission advanced by the learned counsel for the applicants with regard to alleged discrepancies in the list of articles but certainly the Court can arbitrate and gauge the territorial jurisdiction of the court and the process adopted by the learned Magistrate while passing the cognizance order dated 02.05.2019 for the offence under section 406 IPC while summoning the applicants.
[13] Contention raised by the counsel for the applicants that the learned Magistrate lacks territorial jurisdiction to entertain the instant complaint case on the ground that- contesting parties are permanent residents of Delhi; the marriage was solemnized at Delhi; unfortunate incident of demise of daughter of opposite party no.2 took place at Delhi and the applicants are facing prosecution under section 304B I.P.C. and allied sections pending before the competent Sessions Judge at Rohini Court, Delhi. Concealing all these material facts, opposite party no.2 projected herself to be permanent resident of Baghpat demonstrating old voter I.D. Card of 1995. The concerned Magistrate, and after recording the statements under section 200 and 202 Cr.P.C., passed a mechanical cognizance order dated 02.05.2019, which is annexed as annexure 10 to the petition.
Learned counsel for the applicants drew attention of the court to the legal proposition contained under section 202(1) Cr.P.C. which reads thus:-
202.(Postponement of issue of process-(1) Any Magistrate, on receipt of a compliant of an offence of which he is authorized 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 compliant has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
[14] The underlying object of this Amendment of 2005 is to save the applicants from the false complaints against the persons, who reside at far off places simply to harass them but after this amendment, it is made obligatory upon the Magistrate that before summoning the applicants reside beyond his jurisdiction, he must enquire into the case either himself or direct the investigation to be made by police officer or by such person as he deem fit, so as to ascertain as to whether or not there was sufficient grounds for proceeding against the proposed accused persons.
[15] In order to buttress his contention, the learned counsel for the applicants has cited 2 citations; (I) VIJAY DHANUKA AND OTHERS VS. NAJIMA MAMTAJ AND OTHERS, 2014 (14) SCC, 638, (ii) ABHIJIT PAWAR VS. HEMANT MADHUKAR NIMALKAR 2017(III) SCC, 528 paragraph nos. 23 and 24; which are as under:-
(23). Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22.06.2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction". There is a vital purpose or objective behind this amendment, namely; to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proceeding the said amendment.
24. The essence and purpose of this amendment has been captured by this court in Vijay Dhanuka Vs. Najima Mamtaj in the following words: (SCC P.644, paras 11 - 12).
11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process ''in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words ''and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, where inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.06.2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far-off places in order to harass them. The note for the amendment reads as follows:-
''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 enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.' The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
[16] Thus, from the aforesaid, it is crystal clear that the amended provision casts an obligation on a Magistrate, in order to save the innocents from unwarranted harassment by unscrupulous complaint by file a fake complaint against the proposed accused, who reside beyond the territorial limits. This legal plug was inserted by the legislation as it is not an ornamental amendment but has got legal significance, just to safeguard the interest of proposed accused, who reside beyond the territorial limits of the Magistrate. It is incumbent upon the Magistrate as the word "Shall" reflects that under this extraordinary situation, where proposed accused reside beyond this territorial limit, before issuing summons, calling upon them to face the prosecution, postpone this exercise of issuing summons and either inquire into the case for himself or direct the police to hold proper investigation with the object as to whether or not there is sufficient ground for proceeding. This is not a mere formality but it carries significance. A Magistrate is not supposed to act as post office or act as a ministerial job or is not a vending machine. Summoning a person for an offence is not for the purposes of amendment but casts/reflects upon the carrier/character of the person summoned. Thus, it must be exercised diligently with utmost care and only after duly satisfying. The order of summoning must reflect that this exercise has been duly conducted by the Magistrate before passing the summoning order.
[17] The steps taken by Magistrate under section 190(1)(a) of Cr.P.C. followed by Section 204 Cr.P.C. shall reflect that Magistrate has applied his judicial mind to the facts and statements and he satisfied himself that the grounds proceeding further in the matter by asking the person against whom the volition of law is alleged to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in complaint would constitute an offence and when considered along with the statements recorded, would prima facie make the accused answerable to the court. The Code of Criminal Procedure requires speaking order. As mentioned earlier, a Magistrate is not to act as post office or a vending machine while taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be a sufficient indication in the order passed by the Magistrate that he satisfied that allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of enquiry or report of investigation under section 202 Cr.P.C., if any, the accused is answerable before the criminal court. There is ground for proceeding against accused under Section 204 Cr.P.C. by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction.
[18] If there is no such indication in the case, when the Magistrate proceeds under sections 190/204 Cr.P.C. the High Court is perfectly justified in upsetting such order in exercise of its extraordinary inherent process under section 482 Cr.P.C. to prevent court. To be summoned to appear before the criminal court as an accused, is a serious matter affecting ones dignity, self respect and image in the society. Hence the process of criminal court shall not be made a weapon of harassment or arm twisting or equate the pending equations.
[19] From the title of the case as mentioned above, applicants are permanent resident of Delhi and in fact the opposite party no.2 is also permanent resident of Delhi but she hide and concealed her identity as alleged by the counsel for the applicants and succeeded in getting her compliant entertained. There is no such inquiry/investigation as contemplated under section 202(1) Cr.P.C. and the learned Magistrate which, in fact obligatory on his part, before issuing the process against the accused/applicants, in most casual or cryptic moments.
[20] I have keenly perused the order impugned dated 02.05.2019 and this court afraid to mention that the order impugned is well short of the standard setup by Hon'ble Apex Court in the case of Vijay Dhanuka(supra) and Abhijit Pawar (supra), Mahmood- -Ul-Rehman Vs. Khazir Mohd Tunda (Para 20 and 22) reported in 2016(1) SCC (Crl) 124 and thus this court has got no hesitation in quashing the impugned summoning order dated 02.05.2019.
[21] Learned counsel for the applicants has canvassed yet another legal issue, while assailing the order of summoning dated 02.05.2019 by mentioning therein that order impugned is non-speaking order and nowhere reflects the application of mind or recording his satisfaction.
[22] Hillocking his submissions, learned counsel for the applicants relied upon another judgment of coordinate bench of this court in the case of VINAY KUMAR @ KALLU AND ANOTHER VS. STATE OF U.P. AND ANOTHER in Criminal Misc. Application (482) No. 23895/2018 decided on 02.08.2018 whereas the coordinate bench of this court while relying upon the judgments of Mahboob and others Vs. State of U.P. and another 2017(2) JIC 320 (All) (LB) and Smt. Shiv Kumar and others Vs. State of U.P. and another reported in year 2017 (2) JIC 589 (All) (LB) and Hariram Verma and 4 others Vs. State of U.P. and Another reported in 2017 (99) All CC 104. The paragraph no. 8 of this judgment is quoted herein below: -
8. But in the impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence of law. Therefore, it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law.
[23] The coordinate bench of this court repeatedly reiterated that the summoning order must reflective of application of judicial discretion, mind and reason has to be recorded before issuing process against the accused/applicants. If the court would compare the impugned order dated 02.05.2019 with the requirement of law mentioned under Section 202 Cr.P.C. and elaborated by the celebrated judgments of Hon'ble Apex Court and coordinate benches of this court mentioned above, this court is of considered view that the impugned order only narrates the statement of complainant and the witnesses and also certain documents/notice and nothing more. I am afraid to gather even a whisper of satisfaction of Magistrate concern, in the impugned summoning order.
[24] On a bare perusal of the order impugned, without having any shadow of doubt, is cryptic and it is quite evident that the learned Magistrate has acted in a most perfunctory and casual manner. FIRSTLY; Despite the fact, that applicants are permanent residents of Delhi, he has not held any inquiry for himself or directed the police to hold investigation, as contemplated under section 202(1) Cr.P.C. and SECONDLY; The order impugned is simply a bald narration of complaint case and numbers of supporting witnesses and documents. Accordingly, in exercise of power under section 482 Cr.P.C. this court sets-aside the impugned summoning order dated 02.05.2019 passed by Additional Chief Judicial Magistrate, Room No. 12, Baghpat and remands the matter back for fresh consideration de-novo.
[25] While remanding the matter afresh, this Court expects from learned Magistrate to hold an enquiry/investigation afresh, as contemplated under section 202 (1) Cr.P.C. It is rather impossible to spell out the form and shape of such a proposed enquiry/investigation, but certainly all those areas, which are enumerated in the judgement, must be properly filtered before recording his satisfaction by speaking order and issuing any summon (if at all, he so decides) and pass appropriate order within ten weeks from the date of production of a certified copy of this order.
[26] With the above observation, present 482 application stands disposed-off.
Order Date :- 17.2.2020 Sumit S