By observing that The bar of jurisdiction under Section 160 of the Cr.P.C. was indisputably applicable to the instant matter and in such a case, the notice issued can rightly be said to be issued without jurisdiction, the Delhi High allowed the petition filed by the petitioner under Article 226 of the Indian Constitution and accordingly the impugned summons/ notices were set aside.
A Single Bench of Justice Chnadra Dhari Singh allowed the writ petition filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C, 1973 seeking issuance of writ order or direction to quash the summons dated January 25, 2022, February 25, 2022 and March , 2022 and March 9, 2022 issued by the Deputy Captain Police, Cyber Crime, by observing that summons/ notices under Section 160 of the Cr.P.C. can be issued by the police officer who is making an investigation under and in accordance with the provisions of the Cr.P.C., and to set into motion such an investigation there is a prerequisite of registration of FIR.
The instant criminal writ petition was instituted under Article 226 of the Constitution of India read with Section 482 of Cr.P.C1973 was filed on behalf of the petitioner for issuance of writ , order or direction to quash summons dated January 25, 2022, February 25, 2022 and March , 2022 and March 9, 2022 issued by the Deputy Captain Police, Cyber Crime.
Factual matrix of the case was such that the petitioner was an advocate, running his law firm- K.S. Kohli & Associates, and was also the founder and non - executive chairman of Frankfinn Aviation Services Pvt. Ltd. The petitioner received from the concerned authority, Deputy Captain- the third respondent, on three occasions with respect to a complaint made by one Rajbikramdeep Singh and his son Munjanpreet Singh. The complainant had allegations against the petitioner and one Harvansjit Singh, for offences under Sections 153A/501/504/505/295A/506 of the Indian Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.
After hearing the submissions from both the sides and after pursuing all the material available on record, the Court took into note that the third respondent issued the impugned notices/ summons to the petitioner under Section 160 of the Cr.P.C, thus the Court deemed it necessary to re- produce the same.
In view of the same, the Court observed that a simple reading of the said provision reflects that a police officer may require attendance of a person who is apparently familiar with the facts and circumstances of a case that such a police officer is investigating. A summons/notice to such a person is to be issued following the due process and procedure of law. The extent of this power is, however, limited by the bounds of jurisdiction. The concerned police officer may issue notice requiring attendance of any person who is within the limits of his own Police Station or that of an adjoining Station, the Court noted.
In pursuance of the same, two questions were posed before this Court for consideration, the first was whether the concerned authority, the third respondent issued the impugned notices at the right stage. Another issue at hand was whether the concerned authority, the third respondent, was well within its powers while issuing summons to a person outside its jurisdiction.
While dealing with the first issue, the Court took into consideration as to at what stage a notice under Section 160 of the Cr.P.C. can be issued. Applying the said proposition to the present case, the Court stated that the concerned authorities received complaints made by the complainants "wherein several allegations were made by them against the petitioner and the other prospective co-accused and upon receiving the complaint, it issued summons under Section 160 of the Cr.P.C. giving opportunity to the petitioner to appear personally for further enquiry into the complaint and the allegations leveled in it.
In view of the same, it was further noted that the third respondent summoned the petitioner at the stage of preliminary enquiry, wherein opportunity was given to him to appreciate oral as well as documentary evidence with respect to the complaints received. Also, the question of law as to whether the preliminary enquiry amounted to investigation or not was also posed for consideration before this Court.
In light of the aforesaid observations, the Court inferred that the summons/ notices under Section 160 of the Cr.P.C. can be issued by the police officer who is making an investigation under and in accordance with the provisions of the Cr.P.C., and to set into motion such an investigation there is a prerequisite of registration of FIR. Without registration of FIR, an investigation cannot be said to have been initiated, the Court observed. In furtherance of the same, the Court noted that even for the inquiry to be held just and legal, the Police Officer is mandated to act in accordance with the provisions of the Cr.P.C. and he may not act beyond his powers while conducting the preliminary enquiry without furnishing a report before the Magistrate, the Court noted.
Coming back to the facts of the instant case, the Court was of the view that neither the investigation nor the enquiry was conducted in a legal manner by the concerned authority- the third respondent even for the limited purposes of issuing a notice under Section 160 of Cr.P.C.
While dealing with the second issue the Court noted that the impugned summons/notices were issued by the concerned authority/the third respondent from District S.A.S. Nagar, Mohali, Punjab, whereas, the petitioner alleges that he is a resident of J 1/162 E, 2nd Floor, Rajouri Garden, New Delhi – 110027.
Even a perusal of the impugned summons/notice revealed that the notice under Section 160 of the Cr.P.C. was issued to the petitioner at his correspondence address at House No. 651, Sector 15, Guru Gram, and Haryana. Both these addresses were evidently outside and beyond the territorial limits of the concerned Police Station S.A.S. Nagar. The bar of jurisdiction under Section 160 of the Cr.P.C. was indisputably applicable to the instant matter and in such a case, the notice issued can rightly be said to be issued without jurisdiction, the Court observed.
Keeping in view the aforesaid observations and finding and the relevant provisions under Cr.P.C., the Court noted that firstly , the notice issued under Section 160 of the Cr.P.C. was not issued at the right stage by the third respondent, reason being he was not authorized to conduct the investigation under the Cr.P.C., without registration of F.I.R. for the purpose of issuance of the notice under Section 160 and secondly, the summons/notices were issued without jurisdiction from the concerned authority in S.A.S. Nagar, Mohali, Punjab to the petitioner residing beyond its own station as well as any adjoining station, the Court submitted.
Accordingly, the impugned notices were quashed and set aside as they were found in contradiction with the provisions of the Cr.P.C.
Case name: KULVINDER SINGH KOHLI v. STATE OF NCT OF DELHI & ORS
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