Allahabad High Court
Raj Kumar Singh And 2 Others vs State Of U.P. And Another on 19 January, 2021
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 80
Case :- APPLICATION U/S 482 No. - 1183 of 2021
Applicant :- Raj Kumar Singh And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohammad Waseem
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
2. This application u/s 482 Cr.P.C. has been filed with the prayer to quash the impugned summoning order dated 06.10.2020 passed by Additional Chief Judicial Magistrate, Court No. 3, Varanasi in complaint case no. 828/2020, under Sections 323, 504, 379 IPC, P.S. Cantt., District Varanasi.
3. It has been argued by the learned counsel for the applicants that impugned summoning order has been passed ignoring facts and relevant law and thus, it is liable to be set aside. It was pointed out that applicants were not residing within the territorial jurisdiction of the learned court below and thus, it was necessary for the learned Magistrate to conduct an inquiry in accordance with provisions of Section 202(1) Cr.P.C. Learned counsel submitted that recording of statements of witnesses under Section 202 Cr.P.C. is not the part of inquiry. It has been submitted that the learned Court below has not complied with the provisions of Section 202 Cr.P.C. It has been submitted that no prima facie case is disclosed against the applicants and thus, impugned summoning order is liable to be set aside.
4. Learned A.G.A. has stated that inquiry has been conducted by learned Magistrate himself and thus, the provisions of Section 202 Cr.P.C. have been duly complied with.
5. Perusal of record shows that opposite party no. 2 has filed an application under Section 156(3) Cr.P.C. against the applicants making several allegations, which was registered as a complaint case. The complainant was examined under Section 200 Cr.P.C. and that two witnesses were examined under Section 202 Cr.P.C. and thereafter, applicants were summoned vide impugned order dated 06.10.2020 for the offence under Sections 323, 504, 379 IPC.
6. Much thrust was given to contention that applicants were residents of another district and the inquiry under Section 202(1) Cr.P.C. has not been conducted in accordance with law. At this stage, it would be appropriate to peruse the provisions of Section 202 Cr.P.C. which reads as under:
"(1) Any Magistrate, on receipt of a complaint 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 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."
7. It may be pointed out that 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 in the above section by way of amendment by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 23 June 2006.
8. In the case of Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528, the Supreme Court held that such an inquiry or investigation was mandatory when the accused person resides outside the jurisdiction of the Magistrate, by observing as under:
"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 CrPC was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22-6-2006 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 proposing the said amendment."
9. On the issue of the scope of such inquiry, it may be pointed out that as mentioned in Section 202(1) Cr.P.C. itself, such inquiry is to be conducted for the purpose of deciding whether or not there is sufficient ground for proceeding. Sub-section (2) of Section 202 further enables the Magistrate to take evidence of witnesses on oath during such inquiry, and where the offence is triable by Sessions Court, it is mandatory for the Magistrate to "call upon the complainant to produce all his witnesses and examine them on oath" during such inquiry.
10. In Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, after referring to the definition of the word "inquiry" in Section 2(g) of the Cr.P.C., the Supreme Court held that:
"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."
11. In case of Nishant Tiwari @ Sonu And 2 Ors vs. State Of U.P. And Another (482 Cr.P.C. Application No. 21608 of 2014), decided on 24.06.2014, the same issue was raised before the co-ordinate Bench of this court. In that case too, the accused persons were residents of place outside the jurisdiction of the court of magistrate and they were summoned after examining the complainant under section 200 CrPC and two witnesses were examined during inquiry under section 202 CrPC and Court held as under:
''The term inquiry as contemplated by sub section (1) of Section 202 is a pre-trial inquiry, as would be clear from Section 2 (g) of the Code of Criminal Procedure, which defines inquiry as every inquiry, other than trial, conducted under the Code by a Magistrate or Court. In Hardeep Singh v. State of Punjab: (2014) 3 SCC 92, in para 117.2 of the report, the Constitutional Bench of the Apex Court observed that inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. It was observed that materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In Vasanti Dubey v. State of M.P.: (2012) 2 SCC 731, the apex court, in paragraph 29 of the report, observed that while in a case based on police report, the court while taking cognizance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the FIR, whereas a complaint case requires an enquiry by the Magistrate under Section 200 CrPC if he takes cognizance of the complaint. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Section 200 CrPC. From above, it is clear that recording of statement under Section 200 CrPC or under Section 202 CrPC, is nothing but a part of the pre-trial inquiry. Accordingly, where the magistrate records the statement of the complainant under section 200 CrPC and, if required, of the witnesses under section 202 CrPC and proceeds to consider them, along with other material, if produced, for ascertaining whether a prima facie case is made out to proceed against the accused, and records a satisfaction to that effect, there is sufficient compliance of the amended provisions of sub section (1) of Section 202 of the Code. Process issued to an accused residing out of the territorial jurisdiction of the Magistrate, after following the aforesaid procedure is not vitiated in any manner.
As in the instant case, the process has been issued after recording the statements of the complainant as well as the witnesses as also after recording satisfaction with regards to existence of a prima facie case against the accused, upon consideration of the statements so recorded as also the material brought on record, it cannot be said that there was no compliance of the amended provisions of sub section (1) of Section 202 of the Code of Criminal Procedure."
12. From the above-stated pronouncements, it is quite apparent that examination of witnesses by the Magistrate under Section 202 Cr.P.C. is an inquiry as contemplated under Section 202 (1) Cr.P.C. Though in view of above-stated pronouncements and also considering case of Udai Shankar Awasthi vs. State of U.P. 2013 (2) SCC 435, it is clear that if a prospective accused resides outside the territorial jurisdiction of the Magistrate, the compliance of provisions of Section 202 (1) Cr.P.C. is mandatory before issuance of any process against the prospective accused persons, however, as stated earlier, the examination of witnesses by Magistrate under Section 202 Cr.P.C. also falls within the realm of such inquiry. In view of above-stated legal position, the contention of learned counsel for the applicants that examination of witnesses under Section 202 Cr.P.C., cannot be termed as an inquiry, has no substance. As stated earlier the view taken by this Court in case of Nishant Tiwari @ Sonu (supra) is supported by authority of Hon'ble Apex Court. In view of above-stated case laws, the cases of Arvind Kumar Chaurasiya Anr. vs. State, Application No. 27788 of 2018, National Bank of Oman vs. Barakara Abdul Aziz And Another (2013) (2) SCC 488 and Mahboob & Ors. vs. State of U.P., under Section 482/378/407 Cr.P.C. No. 950 of 2011 relied by learned counsel for the applicants, do not help the case of applicants.
13. Learned counsel has also placed reliance on Pepsi Foods Ltd. And Another vs. Special Judicial Magistrate And Others (1998) 5 SCC 749, which lays down as under:-
"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."
14. In the instant case, it is quite clear that after examination of complainant under Section 200 Cr.P.C., two witnesses were examined in an inquiry under Section 202 Cr.P.C. In view of the averments made by complainant in his statement under Section 200 Cr.P.C. and by the witnesses under Section 202 Cr.P.C., a prima facie case is made out against the applicants. There were sufficient grounds for proceedings against the applicants.
15. So far as these contentions are concerned that complainant has made false allegations, it may be stated that adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. After considering arguments raised by the learned counsel for parties and perusing the impugned complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 Cr.P.C. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C. The perusal of material on record shows that the impugned order has been passed by applying due procedure and no substantial illegality, perversity or any other substantial error could be pointed out. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power can not be exercised to stifle a legitimate prosecution. Such powers have to be exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice.
16. In view of the aforesaid, the instant application under Section 482 Cr.P.C. lacks merit and accordingly, it is dismissed.
Order Date :- 19.01.2021 Anand