Allahabad High Court
Aman Pandey vs State Of U.P. And Anr on 19 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2664
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD "A.F.R." Court No. - 6 Case :- APPLICATION U/S 482 No. - 13262 of 2020 Applicant :- Aman Pandey Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Rajesh Kumar,Shiv Nath Singh(Senior Adv.) Counsel for Opposite Party :- G.A. Hon'ble Ravi Nath Tilhari,J.
1. Heard Shri Shiv Nath Singh, Senior Advocate assisted by Shri Rajesh Kumar, learned counsel for the applicant, Shri Pankaj Saxena, learned A.G.A. for the State and perused the material on record.
2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the summoning order dated 08.08.2019 passed by learned Chief Judicial Magistrate, Maharajganj in Complaint Case No. 265 of 2019 (Razabuddin Khan versus Aman Pandey) under Sections 504 and 506 I.P.C., Police Station-Sonauli, District-Maharajganj and also the impugned order dated 05.03.2020 passed by learned Sessions Judge, Maharajganj in Criminal Revision No. 113 of 2019 (Razabuddin versus State of U.P. and others), pending before the court of learned Chief Judicial Magistrate, Maharajganj.
3. The facts of the case in brief are that the applicant is the Manager of Satyamev Educational Services. The opposite party no. 2 requested the applicant for education of his daughter in M.B.B.S., whereupon the applicant produced the list of the institutions and the opposite party no. 2 had chosen PASCOV University Russia which has recognition from the Medical Council of India and W.H.O. The daughter of the opposite party no. 2 in all awareness of the conditions of admission applied for admission of M.B.B.S. Course in PASCOV University Russia on 08.07.2017 and the said University issued a letter for her admission. She took admission but she did not fulfil the conditions of that University during the course of her studies and also did not attend the classes. Later on, the opposite party no. 2 filed complaint with malafide intention and on incorrect facts that the applicant deceived the complainant as in the said University the education as desired by the complainant in a particular course was not being imparted.
4. The Magistrate after recording the statement of the complainant and of the witnesses passed the summoning order dated 08.08.2019 summoning the applicant under Sections 504 and 506 I.P.C. The complainant filed Criminal Revision No. 113 of 2019 (Rajabuddin versus State of U.P. and another) challenging the summoning order on the ground inter alia that the accused should also have been summoned under Section 420 I.P.C. on the material available on record. The criminal revision was allowed by judgment dated 05.03.2020 and thereby the summoning order dated 08.08.2019 was set aside and the trial court was directed to pass summoning order afresh in accordance with the directions given in that judgment, after hearing the complainant in accordance with law.
5. Learned counsel for the applicant submits that the summoning order is bad in as much as the Magistrate at Maharajganj had no jurisdiction in the matter since the alleged offence was committed not at Maharajganj but at Lucknow. He further submits that the accused persons are residents of a place outside the territorial jurisdiction of the Magistrate, Maharajganj and as such enquiry under Section 202 Cr.P.C. must have been held which has not been held and therefore, the order is bad. Learned counsel for the applicant has placed reliance on the judgment of Hon'ble the Supreme Court in National Bank of Oman versus Barakara Abdul Aziz & Another (2013) 2 SCC 488 and of this Court in Mohammad Illiyas and 2 Others versus State of U.P. and another in Application under Section 482 Cr.P.C. No. 30477 of 2018 decided on 18.09.2018.
6. Learned counsel for the applicant further submits that there are contradictions in the statement of the complainant and the witnesses. The complaint has been lodged in the year 2019 with respect to the incident of 2017. The daughter of the complainant studied for one year in the concerned University at Russia but when she could not complete her education she on her own left the University and took admission in some other Institution. It is only after one year that the daughter of the complainant came to know what kind of studies was being imparted at the University of Russia which, as per the submission, is highly improbable. His further submission is that the complaint has been lodged maliciously and with malafide intention.
7. Learned A.G.A. submits that as per the averments of the complaint, the incident for the alleged offence is also at Sonauli which is part of District Maharajganj. With respect to the enquiry under Section 202 Cr.P.C., it has been submitted by the learned A.G.A. that such enquiry was held as two witnesses were examined under Section 202 Cr.P.C. He submits that no particular mode of enquiry is prescribed under the Code. The statement of the witnesses recorded under Section 202 Cr.P.C. is also an enquiry. Learned A.G.A. has placed reliance on the judgment in the case of Vijay Dhanuka versus Najzma Mamtaj (2014) 14 SCC 638 and in ''Birla Corporation Ltd versus Adventz Investments And Holdings (2019) 16 SCC 610.
8. I have considered the submissions advanced by the learned counsel for the applicant and the learned A.G.A. and perused the material on record.
9. So far as the jurisdiction of the Magistrate at Maharajganj is concerned, from perusal of the complaint and the statement recorded, it is evident that it has been stated that the incident started at Sonauli. Some money was also transferred from the account of the complainant which is at Maharajganj. In view of the specific averments to the above effect, the submission of the learned counsel for the applicant that the Magistrate at Maharajganj had to jurisdiction has no substance and is accordingly rejected.
10. So far as, the question of holding of an inquiry by the learned Magistrate under section 202 Cr.P.C. in cases where the accused persons are residing at a place beyond the area of the territorial jurisdiction of the Magistrate, is concerned, it is relevant to reproduce section 202 Cr.P.C. as amended w.e.f 23.06.2006 which reads as under:-
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.
11. A bare perusal of section 202 Cr.P.C. shows that in a case in which the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, he shall postpone issue of process against the accused and shall hold an inquiry either by himself or direct investigation to be made by a Police Officer or by such other person as the Magistrate thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. The use of the expression ''shall' makes it mandatory for the Magistrate to hold the inquiry contemplated by the section where the accused resides beyond the territorial jurisdiction of the concerned Magistrate. The expression ''shall' is ordinarily read as mandatory. The inquiry may be made by the Magistrate himself or he may direct investigation to be carried by the police Officer or by such other person as he thinks fit. The scope of inquiry under section 202 Cr.P.C. is limited to ascertain the truth or falsehood of the allegations made in the complaint for the limited purpose of finding out whether a prima facie case for issue of process is made out or not. The issuance of process to the accused calling upon him to appear in the criminal cases is a serious matter. The law imposes a serious responsibility on the Magistrate to decide, if, there is sufficient ground for proceeding against the accused. Issuance of process should not be mechanical nor should it be made as an instrument of harassment to the accused. Lack of material particulars and non-application of mind as to the materials cannot be brushed aside as a procedural irregularity.
12. In "National Bank of Oman Vs. Barakara Abdul Aziz reported in 2013 (2) SCC 488" the facts were that the accused was residing out side the jurisdiction of the Chief Judicial Magistrate concerned and he failed to carry out any inquiry or order investigation as contemplated under the amended section 202 Cr.P.C. which amendment was not noticed by the learned Magistrate, and the process was issued on perusal of the complaint and the documents attached thereto, the Hon'ble Supreme Court held that the order passed by the Magistrate was illegal and the High Court acted in accordance with law in setting aside the said order. It is relevant to reproduce paragraph nos. 8, 9, 10 , 11 and 12 of National Bank of Oman (Supra) as under:-
"8. We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 CrPC before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 CrPC before issuing the process.
9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:
(i) on the materials placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
10. Section 202 CrPC was amended by the Code of Criminal Procedure (Amendment) Act, 2005 and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,"
The notes on clauses for the abovementioned amendment read 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 amendment has come into force w.e.f. 23-6-2006 vide Notification No. S.O. 923(E) dated 21-6-2006.
11. We are of the view that the High Court has correctly held that the abovementioned amendment was not noticed by the CJM Ahmednagar. The CJM had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 Cr.P.C. Since it is an admitted fact that the accused in residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the view taken by the High Court.
12. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 Cr.P.C. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 I.P.C. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 Cr.P.C. within two months from the date of receipt of this order. "
13. In "Vijay Dhanuka etc Vs. Nazima Mamtaj etc reported in 2014 (14) SCC 638" wherein also the residence of the accused was shown at a place beyond the territorial jurisdiction of the Magistrate and the Magistrate had issued process after examination of the complainant and two witnesses, questions arose for determination (i) whether it was mandatory to hold inquiry or investigation for the purpose of deciding whether or not there was sufficient ground for proceeding, and (ii) whether the learned Magistrate before issuing summons had held the inquiry as mandated by section 202 Cr.P.C.
14. In Vijay Dhanuka etc. (Supra) the Hon'ble Supreme Court held that in a case where accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry or investigation as the case may be, by the Magistrate is mandatory, which is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints.
15. On the point, if inquiry as mandated by section 202 Cr.P.C was held by the Magistrate, the Hon'ble Supreme Court in Vijay Dhanuka etc (Supra) held that "inquiry" as defined under section 2(g) of the Code of Criminal Procedure means every inquiry other than a trial conducted by the Magistrate or Court. No specific mode or manner of inquiry is provided under section 202 Cr.P.C. In the inquiry envisaged under section 202 Cr.P.C. the witnesses are examined and this exercise by the Magistrate for the purpose of deciding, whether or not there is sufficient ground for proceeding against the accused, was held, nothing but an inquiry under section 202 of the Code.
16. It is relevant to reproduce paragraph nos. 11 to 16 of Vijay Dhanuka (Supra) as under:-
"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" were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. 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.
13. In view of the decision of this Court in Udai Shankar Awasthi v. State of U.P. [(2013) 2 SCC 435 : (2013) 1 SCC (Civ) 1121 : (2013) 2 SCC (Cri) 708] , this point need not detain us any further as in the said case, this Court has clearly held that the provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment: (SCC p. 449, para 40) "40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it [Ed.: The matter between the two asterisks has been emphasised in original as well.] mandatory to postpone the issue of process [Ed.: The matter between the two asterisks has been emphasised in original as well.] where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
14. In view of our answer to the aforesaid question, the next question which falls for our determination is 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;"
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. 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 200 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.
15. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process.
16. In view of what we have observed above, we do not find any error in the order impugned [Vijay Dhanuka, In re, Criminal Revision No. 508 of 2013, order dated 19-2-2013 (Cal)] . In the result, we do not find any merit in the appeals and the same are dismissed accordingly."
17. In the Case of "Birla Corporation limited Vs. Adventz Investments and holdings 2019 (16) SCC 610" the Hon'ble Supreme Court has reiterated the same proposition of law that at the stage of inquiry under section 202 Cr.P.C the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.
18. Thus, the law as settled is that the inquiry or the investigation as the case may be, by the Magistrate is mandatory where the accused is residing beyond the area of exercise of his jurisdiction. In the inquiry envisaged under section 202 Cr.P.C the witnesses are examined and this exercise by the Magistrate is an inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. If witnesses have been examined it cannot be said that any inquiry as contemplated by amended section 202 Cr.P.C. was not held.
19. In the case of Smt. Parvender Kaur and Another versus State of U.P. and Another passed in Application under Section 482 Cr.P.C. No. 27369 of 2018 decided on 12.09.2018", and in the case of "Arvind Kumar Chaurasiya and another versus State of U.P. and Another passed in Application under Section 482 Cr.P.C. No. 27788 of 2018 decided on 27.08.2018", this Court held that the Magistrate before issuing process after invoking this provision should satisfy himself that the complaint filed against the person residing outside the jurisdiction of the court is not for his harassment. How the Magistrate has satisfied himself in this regard must be reflected from the proceedings conducted by him. Therefore, a conscious decision has to be taken. Specific order is required to be passed regarding postponement of issuing process and for initiation of inquiry either by himself or ordering investigation, as the case may be. If the Magistrate decides to inquire himself he should put necessary questions with the witnesses and also to the complainant, like, identity of accused, acquaintance of complainant and witness with the accused, relationship in between accused and complainant and in between complainant and witnesses etc. If, the Magistrate decides to order investigation then purpose of investigation and person to whom investigation is entrusted should be clearly mentioned by giving a reasonable time to complete the investigation.
20. In Smt. Parvinder Kaur and another (Supra) this court has held as under in paragraph nos. 5, 6 and 7 :-
"5. To fulfil the intention of the statue, a Magistrate before issuing process after invoking this provision should satisfy himself that the complaint filed against the person residing outside the jurisdiction of the court is not for his harassment. How the magistrate has satisfied himself in this regard must be reflected from the proceedings conducted by him. Therefore, a conscious decision has to be taken. Specific order is required to be passed regarding postponement of issuing process and for initiation of enquiry either by himself or ordering investigation, as the case may be. If the Magistrate decides to enquire himself he should put necessary questions with the witnesses and also to the complainant, like; identity of accused, acquaintance of complainant and witness with the accused, relationship in between accused and complainant and in between complaint and witnesses etc.
6. If, however, the Magistrate decides to order investigation then purpose of investigation and person to whom investigation is entrusted should be clearly mentioned by giving a reasonable time to complete the investigation. It is also important to note that this investigation under section 202 Cr.P.C. is different from the investigation under section 156 Cr.P.C. Therefore, the Magistrate before ordering investigation must ensure that the investigating officer or any other person shall not be allowed to arrest the accused in such investigation. The Magistrate should also keep in mind the proviso added to sub-section(1) of section 202, which deals with cases wherein investigation could not be directed.
7. In the present case, it is not reflected from the proceedings that the Magistrate has exercised his jurisdiction after complying with the mandatory provisions of Section 202 Cr.P.C. To the contrary, the Magistrate has summoned accused person, as is evident from the impugned summoning order without complying with the mandatory provisions of Section 202 Cr.P.C."
21. The aforesaid judgments in Smt. Parvinder Kaur and another (supra), Arvind Kumar Chaurasiya (supra) and Mohd. Illiyas (supra) have considered the Apex Court judgment in National Bank of Oman (Supra), which was a case where any inquiry as mandated by section 202 Cr.P.C. was not held by the Magistrate, as the amended section 202 Cr.P.C. was not noticed by the concerned Magistrate. In National Bank of Oman (supra), the Magistrate had not examined the witnesses. The process was issued on perusal of the complaint, the statement of the complainant and the documents attached to the complaint. A perusal of the judgments of this Court, aforesaid, shows that in those cases the Magistrate had not exercised the jurisdiction after complying with the mandatory provisions of section 202 Cr.P.C. In the present case two witnesses were examined under sections 202 Cr.P.C. Therefore, the present case is not a case of no inquiry or no investigation as mandated by section 202 Cr.P.C.
22. The cases of Smt. Parvinder Kaur and another (supra), Arvind Kumar Chaurasiya (supra) and Mohd. Illiyas (supra) have also not taken into consideration the Apex Court judgment in Vijay Dhanuka etc. (Supra) which clearly lays down that in the inquiry envisaged under section 202 Cr.P.C. the witnesses are examined. No specific mode or manner of inquiry is provided by section 202 of the Code.
23. It may be open for the Magistrate to put necessary questions to the witnesses and also to the complainant like identity of accused, acquaintance of complainant and witnesses with the accused, their relationship, etc, in holding inquiry under section 202 Cr.P.C., but if he does not hold inquiry in that particular manner it would not vitiate the order of summoning, in as much as the object of the inquiry is only for the purpose of deciding whether or not there is a sufficient ground for proceeding against the accused and at this stage the Magistrate is not holding any trial. He is holding an "inquiry" which means an inquiry other than trial. However, the order of the Magistrate must indicate that he has made inquiry and on such inquiry he is prima facie satisfied that a case for summoning is made out.
24. In view of the above, the cases of Smt. Parvinder Kaur and another (Supra), Arvind Kumar Chaurasiya (Supra) and Mohd. Illiyas (supra) are of no help to the applicants.
25. In the present case the statements of the witnesses were recorded under section 202 Cr.P.C. It is also admitted to the applicants vide para no. 16 of the affidavit that the statements of PW-1 Kanhaiyalal and PW-2 Masallah were recorded under section 202 Cr.P.C. by the court concerned. The statement of the complainant was recorded on 02.04.2019 and the statement of the witnesses were recorded on 07.06.2019 & 11.07.2019. Therefore, there is also time gap in recording the statements of the complainant and the witnesses, which shows that after recording the statement of the complainant, issuance of process was postponed and the enquiry was held under Section 202 Cr.P.C. before passing the summoning order.
26. This Court is therefore, not convinced with the submission of learned counsel for the applicants that any inquiry as contemplated by section 202 Cr.P.C. was not held by the Magistrate.
27. At the stage of summoning, the Magistrate is required to apply his judicial mind only with a view to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, as has been laid down by the Hon'ble Supreme Court in the cases of R.R. Kapur Vs. State of Panjab, reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal, reported in 1992 SCC 426. It is also settled that the power under Section 482 Cr.P.C. is exercised by the High Court only in exceptional circumstances and only when a prima facie case is not made out against the accused persons.
28. In Sonu Gupta versus Deepak Gupta reported in (2015) 3 SCC 424, the Hon'ble Supreme Court has held as under in paragraph no. 8:-
"8. ...At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence or in other words to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not."
29. The submission of the learned counsel for the applicant that the complaint case is highly improbable, is in the nature of the defence of the applicant which being disputed question of fact and requiring evidence cannot be gone into at this stage of summoning by this Court in the exercise of jurisdiction under Section 482 Cr.P.C. In Harshendra Kumar versus Rebatilata Koley & others (2011) 3 SCC 351, the Hon'ble Supreme Court has held that it is fairly well settled that while exercising inherent jurisdiction under Section 482 Cr.P.C. or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of the accusations.
30. Any contradiction in the statement of the complainant and the witness, could not be brought to the notice of this Court by the learned counsel for the applicant so as to establish that on the material before the Magistrate any case for summoning of the applicant was not made out prima facie.
31. This Court finds that the revisional court has set aside the summoning order dated 08.08.2019 passed by the Magistrate under Sections 504 and 506 I.P.C., as it found that there was sufficient material available on record to show that the accused had cheated the complainant and the trial court had committed illegality in only summoning the accused under Section 504 and 506 I.P.C. and in not summoning the accused under Section 420 I.P.C. also. The learned revisional court directed the learned Magistrate to pass summoning order afresh in accordance with the directions given in the revisional judgments.
32. In view of this judgment, as discussed above this Court finds that the direction given by the revisional court to pass fresh orders cannot be faulted with in as much as the summoning order dated 08.08.2019 passed under Sections 504 and 506 I.P.C. could not be supplemented by the Magistrate but he was required to pass fresh orders under all the applicable sections. The summoning order to the extent the accused was summoned under Sections 504 & 506 I.P.C. has not been set aside by the revisional court on merit. This Court also finds that the said order dated 8.08.2019 as challenged in the present petition does not suffer from any illegality to the extent of summoning of the accused under Sections 504 and 506 I.P.C. on the grounds of challenge made by the learned counsel for the applicant.
33. However, as the order dated 08.08.2019 has already been set aside with direction to pass fresh orders, prayer of the applicant to set aside the order dated 08.08.2019 cannot be granted. It is observed that the grounds of challenge made to the said order have no substance. So far as the revisional order dated 05.03.2020 is concerned no illegality could be pointed out by the learned counsel for the applicant. This Court is also of the considered view that the revisional court after having found that there was material for summoning the accused applicant under Section 420 I.P.C. as well has rightly remitted the matter to the Magistrate for passing fresh orders. The order dated 05.03.2020 passed by the Sessions Judge Maharajgan is therefore maintained with direction to the learned Magistrate to pass fresh orders in pursuance of the judgment of the revisional court in accordance with the directions given there under, in accordance with law.
34. This 482 petition having no merit is dismissed with the aforesaid observations.
Order Date : 19.10.2020 SY