Allahabad High Court
Omprakash And 3 Others vs State Of U.P. And Another on 10 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 408
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD "A. F. R." Reserved on 19.11.2020 Delivered on 10.02.2021 Court No. - In Chamber Case :- APPLICATION U/S 482 No. - 35542 of 2017 Applicant :- Omprakash And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Satendra Singh,Sarvesh Kumar Dubey Counsel for Opposite Party :- G.A.,Hemendra Pratap Singh Hon'ble Ravi Nath Tilhari,J.
1. Heard Sri Ajay Vikram Yadav, learned counsel for the applicants, Sri Azad Singh, learned AGA appearing for the State/opposite party.
2. No one responded for the opposite party no.2 even in the revised call.
3. This application under Section 482 of the Criminal Procedure Code, 1973 (Cr.P.C.) has been filed with prayer to quash the order dated 06.05.2017, passed by the learned Additional Chief Judicial Magistrate, Sadabad, District Hathras, in Criminal Complaint Case No.1256 of 2016 (Murarilal Vs. Omprakash and others), under Sections 323, 342, 379 and 504 IPC, Police Station Sadabad, District Hathras, as also the entire proceedings of the said complaint case.
4. Briefly stated facts of the case as per the application/petition are that the marriage of the daughter of applicant no.1 was solemnized with the son of opposite party no.2 as per Hindu Rites and Rituals, in which huge amount was spent and so many gifts were presented to the opposite party no.2. The opposite party no.2 and his family persons after sometime of marriage, started demanding additional dowry and as the demand could not be fulfilled the opposite party no.2 alongwith his family persons started harassment and ill treatment to the daughter of the applicant and also committed maar-peet with her. On 25.09.2016 she was thrown out of matrimonial home. On 26.09.2016, the daughter of the applicant no.1 lodged a first information report against the opposite party no.2 and his family members which was registered as Case Crime No. 1211 of 2016, under Sections 323, 498-A, IPC and Section 3/4 D.P. Act, Police Station Kotwali, District Mainpuri. She was medically examined at District Hospital, Mainpuri on 26.09.2016.
5. The opposite party no.2, as a counter blast and to create pressure to make settlement moved an application under Section 156(3) Cr.P.C. on 20.10.2016 which was treated as a complaint case by the Additional Chief Judicial Magistrate, Sadabad, District Hathras. After recording the statement of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C., the Magistrate passed the summoning order dated 06.05.2017 summoning the applicants to face trial under Sections 323, 342, 379, 504, IPC.
6. Learned counsel for the applicant submits that the accused persons are residents of a place outside the territorial jurisdiction of the Magistrate, concerned and as such an enquiry under Section 202 Cr.P.C. must have been held which was not held and therefore, the order is bad. He further submits that the order under challenge has been passed mechanically and without judicious application of mind. Learned counsel for the applicant has placed reliance on the judgments of Hon'ble the Supreme Court in National Bank of Oman versus Barakara Abdul Aziz & Another (2013) 2 SCC 488; Ram Dev Food Products Pvt. Lt. Vs. State of Gujarat, (2015) 6 SCC 439 and M/s Papsi Foods Limited Vs. Special Judicial Magistrate, AIR 1998 SC 128, in support of his above submissions.
7. Learned A.G.A. appearing for the State submits that the summoning order has been passed on the basis of the material available on record before the learned Civil Judge (JD)/Judicial Magistrate. The Magistrate was satisfied that a prima-facie case for summoning was made out. The satisfaction is based on the material on record. He further submits that the enquiry under Section 202 Cr.P.C., was held as two witnesses were examined. He submits that any particular mode of enquiry is not prescribed under the Code. He has placed reliance on the judgments in the cases 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 submission as advanced by the learned counsel for the applicant, learned A.G.A. and perused the material on record.
9. I proceed to consider the first submission of the learned counsel for the applicants. The submission is that from the complaint itself it was evident that the accused applicants are residents of District Mainpuri which fell out side the territorial jurisdiction of the concerned Magistrate, as such, it was incumbent on the Magistrate to hold enquiry as provided by Section 202 Cr.P.C.
10. So far as, holding of an inquiry by the 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 Section 202 Cr.P.C. as amended w.e.f. 23.06.2006 provides 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 over 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 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. As, 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 accused persons in general; and the law further imposes a mandate to hold enquiry under Section 202 Cr.P.C, if the accused is residing at a place beyond the area of exercise of jurisdiction of the concerned Magistrate. Issuance of process is not to be mechanical nor can it be made an instrument of harassment to the accused. Lack of material particulars, non-application of mind to the materials and not holding enquiry in cases, where it is mandatory, 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. He failed to carry out any inquiry or order investigation as contemplated under the amended section 202 Cr.P.C. The said amendment was not noticed by the Magistrate. 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 that order. Paragraph nos. 8, 9, 10 , 11 and 12 of National Bank of Oman (Supra) read 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 is 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" the residence of the accused was shown at a place beyond the territorial jurisdiction of the Magistrate. The Magistrate had issued process after examination of the complainant and two witnesses. The questions arose for determination were (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 Magistrate before issuing summons held inquiry as mandated by section 202 Cr.P.C. ?
14. In Vijay Dhanuka (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, the Hon'ble Supreme Court in Vijay Dhanuka (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 which is envisaged under section 202 Cr.P.C. the witnesses are examined. 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 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 "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, it is settled in law 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 and in the inquiry envisaged under section 202 Cr.P.C the witnesses are examined. This exercise of examination of the witnesses by the Magistrate is an inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against those accused. If witnesses have been examined it cannot be said that any inquiry, as contemplated by Section 202 Cr.P.C. was not held.
19. In the present case, the statement of the witnesses were recorded under Section 202 Cr.P.C. as is admitted to the applicants vide paragraph no.9 of the affidavit, wherein, it has been stated that the statement of PW-1, Balkishan, and PW-2 Mukesh Chandra were recorded under Section 202 Cr.P.C. by the court concerned.
20. The statement of the complainant/opposite party no.2 was recorded on 08.03.2017 and the statement of the witnesses P.W.-1 and P.W.-2 were recorded on 07.04.2017.
21. In view of the above, this Court finds that there was postponement of issuance of process, after recording the statement of the complainant and by recording the statements of the witnesses on a later date i.e. 07.04.2017, the enquiry under Section 202 Cr.P.C. was also held before passing the summoning order.
22. National Bank of Oman (Supra) relied upon by the learned counsel for the applicants, was a case of no enquiry under Section 202 Cr.P.C, as is evident from paragraphs 8 and 11 of the report. The amended provision of Section 202 Cr.P.C. was not noticed by the concerned Magistrate and the process was issued merely on the statements recorded under Section 200 Cr.P.C.
23. Now I proceed to consider the next submission of the learned counsel for the applicants that the summoning order has been passed mechanically and without application of judicial mind.
24. In M/s Pepsi Foods Ltd. (Supra) the Hon'ble Supreme Court held in paragraph no.28 that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
25. In Birla Corporation Limited (Supra), the Hon'ble Supreme Court has held as under in paragraph 54:-
"54. While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. As held in Mehmood Ul Rehman, since it is a process of taking a judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process."
26. In GHCL Employees Stock Option Trust Vs. India Infoline Ltd. (2013) 4 SCC 505, the Hon'ble Supreme Court has held as under in paragraph 14:-
"14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record."
27. In the case of Bhushan Kumar Vs. State (NCT of Delhi) AIR 2012 SC 1747, the Hon'ble Supreme Court has reiterated the above principles. It has been further held that the summoning order under Section 204 of the code requires no explicit reasons to be stated, because, it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the material filed therewith. Paragraph nos. 13 to 15 of Bhushan Kumar (supra), read as follows:
"13) In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
14) In Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in para 9, held as under:
9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6) "The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."
15) In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in paragraph 23, held as under:
It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."
28. The law is clear and settled that summoning an accused to face criminal trial is a serious matter. The criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint and the Magistrate, merely in view thereof, has to set the Criminal law into motion. The Magistrate has to examine the nature of the allegations made in the complaint and the evidence both oral and documentary in support thereof. The Magistrate has to apply his judicial mind to the facts of the case and the law applicable therein. He has to, prima-facie, arrive at satisfaction that the offence is made out and the accused deserves summoning for trial. Not only this, the application of judicial mind and the satisfaction must also be reflected from the order. Although, it is not required that the Magistrate should discuss in detail or make a comparative assessment of the evidence, but, mere statement that the Magistrate had gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient to demonstrate application of judicial mind; the Magistrate cannot act in a mechanical manner, as has been held also in Anil Kumar Vs. M. K. Aiyappa and another, (2013) 10 SCC 705. At the same time, the order of summoning under section 204 Cr.P.C. does not require any explicit reasons to be stated and a detailed expression of his views is neither required nor warranted as held in Bhushan Kumar Vs. State (NCT of Delhi) AIR 2012 SC 1747.
29. In view of the above position in law, the submission of the learned counsel for the applicants is correct on principles, but, the question is if the order under challenge does or does not stand the test of the above settled law.
30. Before dealing with the above question the scope of interference with the summoning order in the exercise of jurisdiction under Section 482 Cr.P.C. also deserves consideration.
31. So far as the power of this Court under Section 482 Cr.P.C. against the summoning order is concerned it is well settled that this power is to be exercised only in exceptional circumstances and only when a prime facie case is not made out against the accused and the criminal prosecution amounts to abuse of the process of the Court or to secure the ends of justice it is necessary to interfere. The Magistrate has been given an undoubted discretion in the matter which has to be applied judicially and once it has been applied judicially it is not for the higher Courts to substitute their discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused nor the disputed defence of the accused can be considered at that stage, as has been held by Hon'ble the 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 AIR 1992 SC 604, and in Bhushan Kumar (Supra).
32. 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."
33. In Birla Corporation Limited (Supra), also the Hon'ble Supreme Court laid down the scope of Section 482 Cr.P.C.. It is apt to reproduce paragraph 84 thereof as under:-
84. It is well settled that the inherent jurisdiction under Section 482 Cr.P.C. is designed to achieve a salutary purpose and that the criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, the Supreme Court reviewed the earlier decisions and summarised the principles as to when the issue of process can be quashed and held as under:-
"5. .............. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
34. In Harshendra Kumar D. 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. The same has been reiterated in Anita Malhotra Vs. Apparel Promotion Council, (2012) 1 SCC 520.
35. Keeping in view the above principles, I proceed to consider if the order passed by the Magistrate summoning the accused is legal or not, in the light of the submissions advanced by the learned counsel for the applicants.
36. A perusal of the order shows that it is not mechanical one. It reflects consideration of the statements of the complainant and of the witnesses. The Magistrate has summoned not all the opposite parties arrayed as accused in the complaint, but, has summoned only the applicants. The Magistrate has recorded in his order that prima facie case for summoning under Sections 323, 342, 379, 504, IPC was made out. This clearly demonstrates consideration of the statements of the complainant and the witnesses, and of application of judicial mind to arrive at the satisfaction for summoning under the sections for which offences were prima facie made out against the applicants only.
37. Learned counsel for the applicants could not successfully demonstrate before this Court as to how the summoning order suffers from illegality or perversity or improper exercise of jurisdiction or that any case for summoning the accused persons, was not made out even prima facie, on the basis of the averments in the complaint and the material on record.
38. So for as the submission of the learned counsel for the applicants that the applicants have been falsely implicated, the same cannot be determined at this stage in the exercise of the jurisdiction under Section 482 Cr.P.C. as the said submissions require adjudication on the basis of evidence and can be determined during trial. The submission that the applicants have been implicated due to the F.I.R. lodged by them against the opposite party no.2 and his family members, as a counter blast, cannot form the basis for interference with the summoning order, particularly when it could not be established that the averments of the complaint alongwith the material on record do not make out prima-facie, commission of any offence by the applicants and also when the date of the incident as mentioned in the FIR and the complaint filed by opposite party no.2 is the same.
39. Lastly, it was also submitted that the complaint was filed with delay, as it was filed on 20.10.2016 whereas the alleged incident is dated 26.09.2016. The Court is not convinced for the reasons more than one. Ordinarily, delay in filing complaint by itself cannot be a ground to quash the criminal prosecution. Further, the delay does not appear to be inordinate. Besides paragraph 4 of the complaint mentions that on 26.09.2016 when the complainant approached the concerned Police Station, his report was not lodged. An application to the Superintendent of Police concerned is also said to have been sent through registered post but when any action was not taken, the complaint under Section 156(3) Cr.P.C. was filed on 20.10.2016.
40. The order passed by the Magistrate is in conformity with the settled law. I do not find any illegality in the order under challenge. The prayer for quashing the summoning order and the further proceedings of the complaint case is refused.
41. This application under Section 482 Cr.P.C. is hereby rejected.
42. No order as to costs.
Order Date :-10.02.2021 [Ravi Nath Tilhari,J.]
VKG