Allahabad High Court
Asfaq And 2 Others vs State Of U.P. And Another on 10 August, 2022
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 86
Case :- APPLICATION U/S 482 No. - 21597 of 2022
Applicant :- Asfaq And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Purushottam Dixit,Jitendra Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicants, learned counsel for the opposite party no.2, learned AGA for the State and perused the record.
The instant Application 482 Cr.P.C. has been filed for quashing the impugned order dated 06.02.2020 passed by the learned Chief Judicial Magistrate, Firizabad in complaint case No.1555 of 2019, under Sections 498-A, 323 IPC and 3/4 of D.P. Act., Police Station-Ramgarh, District-Firozabad.
Learned counsel appearing for the applicants submits that factual matrix of the case is that, complaint was filed on 17.05.2019 by the opposite party no.2 namely, Chandni against the present applicants under Sections 498-A, 323, 504, 506 IPC and 3/4 of D.P. Act. Thereafter, the statements of the complainant-Chandani was recorded under Section 200 of Cr.P.C. and the statements of the witnesses namely, Chand Khan and Khushnuma were also recorded under Section 202 of Cr.P.C. On 06.02.2020, on the basis of the aforesaid statements recorded by the Magistrate, the present applicants were summoned.
Learned counsel appearing for the applicants has argued that, in fact, while passing the summoning order, the Magistrate did not consider the fact that since the applicants are residing outside the territorial jurisdiction of the Magistrate and, as such, the mandate of Section 202(1) of Cr.P.C. to be followed by the Magistrate while passing the summoning order. It is evident from the complaint itself that the complainant is of District-Firozabad and the respondents are residing at Aligarh. He has also mentioned this fact in paragraph nos.9 and 10 of the instant application. He next submits that since no proceeding under Section 202(1) Cr.P.C. for enquiring the fact was ever done by the Magistrate prior to passing the order impugned and, as such, the order passed by the court below vitiates in the eyes of law and is liable to be set aside.
He has also supported his contention by placing a judgment reported in 2013 (2) SCC (Cri.) 731 (National Bank of Oman Vs. Barakara Abdul Aziz and another) and has referred para 4 and 10 of the aforesaid judgment. Para 4 and 10 of the aforesaid judgment are quoted hereinunder:-
"4. The respondent challenged that order by filing Criminal Application No.3146/2012 before the High Court of Judicature, Bombay Bench at Aurangabad. It was contended that the allegations in the complaint do not prima facie constitute any offence or make out a case for issuance of process under Sections 418 and 420 of the I.P.C. Further, it was stated that the respondent-accused was a resident of Dakshin Kannada in the State of Karnataka and the C.J.M. Ahmednagar issued the process without complying with the mandatory requirement of making an enquiry or directing an investigation for the purpose of deciding whether or not there was sufficient ground for initiating proceedings against the accused as contemplated under Section 202 of the Code of Criminal Procedure. The High Court took the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance or process under Section 418 of 420 of the I.P.C. Further, it was held that the C.J.M. did not follow the procedure laid down under Section 202 of the Cr.P.C. The High Court held that the Magistrate was obliged to postpone the process against the accused and either enquire the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient grounds for proceeding in a case where the accused is residing beyond the area in which the Magistrate exercises his jurisdiction. The High Court noticed that the accused is a resident of District Dakshin Kannada, Karnataka and hence, the CJM should have followed the procedure laid down in Section 202 Cr.P.C. The High Court, therefore, set aside the order dated 25.2.2011 issuing the process under Sections 418 and 420 of the I.P.C. by the C.J.M. Ahmednagar. Aggrieved by the said order the Bank has come up with this special leave petition.
10. We are of the view that the High Court has correctly held that the above-mentioned amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. 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 of the 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 of the I.P.C. The C.J.M. 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."
Referring the aforesaid judgment, he submits that it has specifically been held that if the accused resides outside the territorial jurisdiction of the Magistrate then the proceeding of Section 202(1) of Cr.P.C. is mandatory. In the instant matter, the aforesaid settled proposition of law has been violated.
On the other hand, learned AGA appearing for the State has opposed the contention aforesaid and submits that the Magistrate after recording the statements under Section 200 and 202 of Cr.P.C., has passed the order impugned and the aforesaid order is lawful and is not liable to be interferred.
Having heard learned counsel for the parties and after perusal of record, it is evident from the complaint itself that prospective accused are residing outside the territorial jurisdiction of the Magistrate concerned, who has passed the impugned order. Further, as per the pleadings, no proceeding under Section 202(1) of Cr.P.C. was taken care of and, further, the settled proposition of law has also been violated and, as such, the proceeding has become vitiated in the eyes of law.
Therefore, in the light of the discussion aforesaid, the summoning order dated 06.02.2020 passed by the learned Chief Judicial Magistrate, Firizabad is hereby set aside.
The matter is remitted back to the court below to proceed from the stage of the proceeding of Section 202(1) of Cr.P.C. and pass a fresh order therein.
With the aforesaid observations, the instant application is allowed.
Order Date :- 10.8.2022
Ashutosh
