Rajesh And 5 Others vs State Of U.P. And Another
2021 Latest Caselaw 1715 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 80
 

 
Case :- APPLICATION U/S 482 No. - 2247 of 2021
 

 
Applicant :- Rajesh And 5 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Shahroze Khan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.03.2019 passed by learned Civil Judge (Junior Division)/Judicial Magistrate, Siddharth Nagar, whereby applicants have been summoned in Complaint Case No. 514 of 2018 (Uma Shanker Vs. Rajesh and other) under Sections 149, 323, 325, 452, 504 I.P.C. Police Station Lotan, District Siddharth Nagar and to quash the order dated 19.10.2020 passed by learned Additional Sessions Judge, Court No.1, District Siddharth Nagar in Criminal Revision No. 75 of 2019 (Rajesh and others Vs. State and another), whereby criminal revision filed by the applicants against the summoning order has been dismissed.

Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material on record.

It has been argued by learned counsel for the applicants that the impugned complaint has been filed by the opposite party no.2 making false and baseless allegations. The alleged incident has been shown of 09.08.2018, whereas the complaint has been filed on 31.08.2018. It was stated that as per medical examination report, injured has not sustained any incised wound. Learned counsel further submitted that even three ladies have been summoned without there being any cogent evidence against them. It was further submitted that applicant no.6 namely, Sanjana is a resident of another District and thus it was mandatory for the learned Magistrate either to enquire into the case by himself or direct the investigation to be made by the police but the said provisions of Section 202 (1) Cr.P.C. have not been complied. In this regard, learned counsel has relied upon a Judgement of this Court reported in 2014 (1) JIC 221 (All) (LB) Pawan Kumar Yadov Vs. State of U.P. and another in support of his contention. It was further submitted that in view of above stated facts, no prima facie offence is disclosed against the applicants and that the impugned orders are liable to be quashed by this Court.

On the rival side, learned A.G.A. has opposed the application. It was further submitted that there is no illegality or impropriety in the impugned orders, which calls for no interference by this Court in exercise of powers conferred under Section 482 Cr.P.C. jurisdiction.

In the instant case, perusal of record shows that opposite party no.2 has filed a complaint against the applicants alleging that on 09.08.2018 at 7:00 P.M. they have trespassed in his house and they have abused and assaulted him resultantly the complainant has sustained injuries and fracture in his thumb. The opposite party no.2/complainant was examined under Section 200 Cr.P.C. and that two witnesses namely, P.W.1 Daya Ram and P.W.2 Shiv Chand were examined under Sections 202 Cr.P.C. The complainant as well as above stated witnesses have supported the above said version and thereafter, applicants were summoned to face trial under Sections 149, 323, 325, 452, 504 I.P.C.

Learned counsel for the applicant has given much thrust to the argument that applicant no.6-Sanjana is a resident of another District i.e. District Maharajganj and thus in view of provisions of Section 202 (1) Cr.P.C. it was mandatory that either the Magistrate must have enquired into the matter himself or he must have direct the investigation to be made by the police but that provision has not been followed.

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."

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. In the case of Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, the Hon'ble Supreme Court, while interpreting the above legal provision, held that:

"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."

After referring to the definition of the word "inquiry" in Section 2(g) of the Cr.P.C., the 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."

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."

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.

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 Cr.P.C 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 202CrPC, 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."

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 and in view of above discussed position of law.

In view of aforesaid position of law, the law laid down in the case Pawan Kumar Yadav (supra), relied by learned counsel for the applicant, cannot be applied in this case.As stated earlier the view taken by this Court in case of Nishant Tiwari @ Sonu (supra) is supported by the authority of Hon'ble Apex Court.

In the instant case, it is quite clear that after examination of complainant under Section 200 Cr.P.C., two witnesses, namely, PW-1Daya Ram and PW-2 Shiv Chand 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.

So far as these contentions are concerned that complainant has made false allegations and that there is delay in lodging of the complaint, it may be stated that the legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.

In the instant matter, the submissions raised by learned counsel for the applicants call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. 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 material 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. No such ground appears to be available to the applicants, on the basis of which the impugned complaint can be quashed going by the settled law in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 SCC (Cr.) 283.

Perusal of material on record shows that the impugned summoning order has been passed by applying due procedure and no substantial illegality, perversity or any other substantial error could be pointed out. Similarly the revision was also dismissed by a reasoned order. 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.

In view of the aforesaid, the instant application under Section 482 Cr.P.C. lacks merit and accordingly, it is dismissed.

Order Date :- 29.1.2021

S.Ali