Allahabad High Court
Anil Sabbarwal vs State Of U.P. And Another on 11 April, 2018
Author: Umesh Chandra Srivastava
Bench: Umesh Chandra Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 15 AFR Case :- APPLICATION U/S 482 No. - 8760 of 2015 Applicant :- Anil Sabbarwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Pathak Counsel for Opposite Party :- Govt. Advocate,Gaurav Pundir,Nazia Ilyas,S.A. Siddique Hon'ble Umesh Chandra Srivastava,J.
Applicant-Anil Sabbarwal son of Sri O.P. Sabbarwal is before this Court seeking quashing of entire proceedings of Complaint Case No. 4212 of 2013 (Vishal Kochhad Vs. Pulkit Sahney and others), under Section 406 IPC, P.S. Sector-20, District Gautam Budh Nagar, pending in the court of Additional Chief Judicial Magistrate, IIIrd, Gautam Budh Nagar.
Heard Sri Rajesh Pathak, learned counsel for applicant, Ms. Nazia Ilyas, learned counsel for opposite party no. 2, learned A.G.A. for State and perused the record.
Learned counsel for applicant submitted that order dated 03.4.2014 of learned Magistrate passed in complaint case no. 4212 of 2013 suffers from illegality as learned Magistrate has failed to apply his mind while passing the order. He submitted that to constitute an offence of criminal breach of trust, entrustment or dominion over property said to be misappropriated or converted to own use is must, and since no property was entrusted or was under dominion of applicant, no offence under Section 406 IPC can be said to have been made out against him. Applicant had no concern with locker in any manner nor he operated the same. He has been implicated on account of being maternal uncle of Smt. Pulkit Sahney, a co-accused. The locker which was allegedly operated upon by Smt. Pulkit Sahney was in the joint name of her and opposite party no. 2.
The learned counsel for applicant further submitted that wife of opposite party no. 2 had lodged a non cognizable report which was latter converted into cognizable one and had also lodged an FIR against opposite party no. 2 at Mahila Thana in Jaipur and instant complaint was filed with false and frivolous allegations in counter blast to them.
Learned counsel for applicant further submitted that order passed by learned magistrate is bad in law as he passed the same without complying mandatory provisions of sub-section (1) of Section 202, Cr.P.C. He submitted that sub-section (1) of Section 202, Cr.P.C. is mandatory and it reads that where an accused in a complaint case is residing at a place beyond the area in which Magistrate exercises his jurisdiction, the Magistrate, on receipt of complaint, shall after examining complaint and the witnesses present, shall postpone the issuance of process against accused and either inquire into the case himself or direct an investigation to be made either by himself or by a police officer or by such other person, as he thinks fit, for the purpose of deciding whether there is sufficient ground for proceeding. He further submitted that, admittedly, applicant and other accused persons whom magistrate has issued the process are not the residents of District Gautam Budh Nagar. Applicant is the resident of House No. D-3, 3595, Basant Kunj, New Delhi while remaining two accused, who are none else but wife and brother-in-law of opposite party no. 2, are the residents of Jaipur. He further submitted that when all accused persons, including applicant are not the residents of district Gautam Budh Nagar, but they are the residents of New Delhi and Jaipur, the places beyond territorial jurisdiction of court at Gautam Budh Nagar, it was mandatory for learned Magistrate to direct an inquiry to be made and after holding the inquiry and being satisfied with the same only, he could have issued process against applicant, and not before this. Thus, he submitted that since learned Magistrate did not direct any inquiry to be made and straightway issued the process after examining complaint only, the same being violative of mandatory provisions of law is liable to be quashed.
Per contra, learned A.G.A. for State and learned counsel appearing for opposite party no. 2 submitted that it is mandated in sub-section (1) that in case where accused is not the resident of an area falling under territorial jurisdiction of Magistrate, authorized to take cognizance in respect of an offence, the learned Magistrate on receipt of complaint shall firstly examine the complainant and the witnesses present in court under Section 200 Cr.P.C., and, therefter, before issuing process under Section 204, shall direct an inquiry/investigation to be made either by himself or by any other police officer, as he thinks proper. However, purpose behind holding an inquiry before issuing process is to have check over filing of false and frivolous complaints against persons residing at far off places for harassment. But, if complaint on account of being based on documentary evidence or any other reason appears to be true and genuine, magistrate can straightway issue process to accused even residing at far off place without holding inquiry as required under sub-section (1). They further submitted that if holding inquiry is made must in each and every case, it would be very difficult to prosecute cases under Negotiable Instrument Act where accused are normally of far off places.
Learned A.G.A. and learned counsel for opposite party no. 2 further submitted that in case in hand applicant and other two accused persons are not stranger to opposite party no. 2. They are closely related with complainant, applicant is the maternal uncle of his wife and other two are his wife and brother-in-law. The two accused persons who are wife and brother-in-law, it is stated about them that wife was residing with complainant at her matrimonial home in Gautam Budh Nagar while brother in law was frequent visitor of that house. They have further submitted that where applicant and other accused were closely related with opposite party no. 2 and they were residing at the house of opposite party no. 2 or in nearby area, inquiry as contemplated under sub-section (1) was not necessary in their matter before issuing process to them. So, if learned Magistrate did not hold any inquiry under sub-section (1) and straightway issued process, after examining the complainant under Section 200, the order passed by him would not be illegal for being passed without holding inquiry under sub-section (1).
In support, they have placed reliance on the judgment of Hon'ble Supreme Court in the case of Vijay Dhanuka ETC Vs. Najima Mamtaj ETC 2014 Law Suit (SC) 223 and National Bank of OMAN Vs. Barakara Abdul Aziz & another, 2012 Law Suits (SC) 886.
Hon'ble Apex Court in the above case has held that when accused resides beyond territorial jurisdiction of Magistrate, holding of inquiry is mandatory as amendment was made to have check over filing of false and frivolous complaints against persons residing at far off places for harassment.
Hon'ble Apex Court in the case of National Bank of OMAN Vs. Barakara Abdul Aziz & another has held that if accused is residing out side the jurisdiction of Magistrate, holding inquiry as required under sub-section (1).
The Apex Court in Sharif-ud-din vs. Abdul Gani, AIR 1980 SC 303 and Lacchmi Narayan vs. Union of India, AIR 1976 SC 714 has laid down the law that whether the statutory provision is mandatory or directory depends on the intention of law maker and not on the language used, where a statute prescribes a particular act to be done in a particular manner laying down special consequences or failure to comply with, then it will be mandatory, otherwise it will be directory.
The Apex Court in the above case has also held that if Magistrate had issued process without holding inquiry, the High Court in stead of quashing complaint would have remanded the case to Magistrate for passing a fresh order.
Holding inquiry by a Magistrate by himself or by any police officer, as he thinks fit has been inserted in sub-section (1) of Section 202, Cr.P.C. by Criminal Procedure (Amendment) Act 2006, w.e.f. 23.06.2006. Prior to this, there was no such provision in the Statute. The reason behind inserting mandatory provision was that false cases were being filed in bulk against persons residing at far off places for harassment. The purpose behind holding inquiry in respect of accused residing beyond territorial jurisdiction of Magistrate was to have check over filing of false and frivolous complaints. Intention of law maker was that by holding inquiry by Magistrate himself or by a police officer or by such other person as he thinks fit, filing of false complaint case may be checked and it was with regard to persons residing at far off places, and not with regard to those whose cases are based on documentary evidences, or who are closely relation with complainant. If accused are closely relation with complainant, and complainant appears to be genuine and not for settling score, chances of false implication are minimized and therefore in such cases process may be issued without holding inquiry under sub-section (1), as reason behind holding inquiry is to curb filing of false and frivolous complaints for harassment.
From the fats of the case it is clear that applicant and two other accused are not stranger, they are close relatives of opposite party no. 2. Though, applicant is the resident of a place beyond territorial jurisdiction of Magistrate, but the place he resides being hardly 50 km. away from Gautam Budh Nagar and he being maternal uncle of wife of opposite party no. 2, there seems to be a little chance to falsely implicate him. The other two accused being wife and brother-in-law are also closely related with opposite party no. 2. The case against them is based not only on oral evidence but on documentary and other evidences also. Accused do not dispute that locker which was in the joint name of complainant and his wife was operated upon while complainant was in custody. It is claimed/stated that all three accused had visited the bank together when locker was operated. Their images are also said to be captured in CC TV cameras installed in bank premises. In the circumstances, if process was issued to them straightway without holding inquiry under sub-section (1) the same would not be violative of mandatory provisions of law nor proceedings of the criminal case would be quashed on this reason. In the result, application deserves to be dismissed.
Accordingly, application is dismissed.
Order Date :- 11.4.2018 RCT/-