Smt Sushma Chauhan And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 13094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 68
 

 
Case :- APPLICATION U/S 482 No. - 12071 of 2023
 

 
Applicant :- Smt Sushma Chauhan And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Jitendra Singh,Bhuvnesh Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Jitendra Singh, learned counsel for the applicants, Mr. Amit Singh Chauhan, learned A.G.A for the State and perused the material available on record.

As legal submission have been raised by counsel for the applicants challenging the summoning order passed by the concerned Magistrate, hence, the present application is being decided without issuing notice to opposite party no.2

The present application under Section 482 Cr.P.C. has been filed by the applicants to quash the summoning order dated 20.05.2022 passed by Judicial Magistrate (J.D.)/F.T.C., Court No.2, Bijnor as well as the entire proceedings of Complaint Case No. 6482 of 2021 (Preeti Chauhan Vs. Saurabh Chauhan and others), under Section 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act, Police Station-Mahila Thana, District-Bijnor, pending in the Court of Civil Judge (J.D.)/F.T.C., Court No.2, Bijnor.

Brief facts of the case are that, the present complaint has been filed by opposite party no.2 on 29.09.2021 with the allegations that marriage of opposite party no.2 was solemnized with applicant no.3 on 10.02.2012 according to Hindu Rites and Rituals. After the marriage, the family members of her in-laws including her husband (applicant no.3) used to mentally and physically torture her for non fulfillment of dowry demand. Out their wedlock, they blessed with a baby girl. It is also alleged that the opposite party no.2 was subjected to cruelty due to non fulfillment of dowry demand and for not giving birth to a male child despite giving birth of girl. On 08.09.2021 at about 04:00 a.m., the opposite party no.2 was assaulted by the applicants and left at her parental home, hence, the present complaint was filed in which the applicants have been summoned vide order dated 20.05.2022 without following the mandatory requirement as provided under Section 202 Cr.P.C., which has been challenged before this Hon'ble Court.

Learned counsel for the applicants submits that though the address of the applicants as mentioned in the complaint is Moradabad, hence they are residents of Mordabad but the concerned Magistrate sitting at Bijnor has summoned the applicants ignoring and not complying the provision of Section 202 Cr.P.C., 1973. He further submits that procedure stipulated in the said provision is mandatory which imposes an obligation on the Magistrate to ensure that before summoning an accused, who resides beyond his jurisdiction, the Magistrate shall make necessary inquiries into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground to proceed against the accused.

It is undisputed that the applicants are residing at Moradabad, which is beyond the jurisdiction of the concerned Magistrate sitting at Bijnor, hence the concerned Magistrate was duty bound to follow the procedure as prescribed under Section 202(1) Cr.P.C. amended in the year 2006. In support of his submission counsel for the applicants has placed reliance upon the judgement of the Apex Court in the case of National Bank of Oman vs. Barakara Abdul Aziz and another reported in 2012 (0) Supreme(SC) 855 and the judgment of this Court in case of Sayed Sibte Haider Vs. Mohammad Askari Ali & Anr., passed in Criminal Misc. Application Under Section 482/378/407 Cr.P.C. No. 115 of 2018, vide order dated 28.02.2019.

Learned A.G.A. for the State submits that in case, this Court is satisfied that the mandatory requirement of Section 202 Cr.P.C. is not fulfilled by learned Magistrate before issuing the process, this Court can direct the Magistrate to do so.

As the counsel for the applicant while challenging the summoning order has turned upon Section 202 Cr.P.C., hence the following is extracted below:-

"202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, 1 [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."

As per the provision of Section 202 Cr.P.C. as amended with effect from 23.06.2006, the requirement is that in those cases where the accused is residing at a place beyond the area in which the concerned Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. That means, in case, if such an enquiry is not conducted in cases where the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, the purpose of amendment in Section 202 Cr.P.C. would frustrate.

The essence of purpose of amendment has been captured by the Apex Court in case of Vijay Dhanuka v. Najima Mamtaj, reported in (2014) 14 SCC 638:-

"11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.

12. 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 by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." 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 (2014) 14 SCC 638 find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints."

As per provisions of Section 202(1) Cr.P.C. the enquiry or investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the concerned Magistrate, which has been held by the Apex Court in the case of Abhijir Pawar v. Hemant Madhukar Nimbalkar and another, (2017) 2 SCC 528. The relevant para of the aforesaid judgement is 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 Cr.P.C. 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."

Similar view has also been taken by the judgement of the Apex Court in the case of Sunil Todi vs. The State of Gujarat, reported in 2021 SCC Online SC 1174, wherein enquiry by the concerned Magistrate is mandatory, in case, where the accused is residing at a place beyond the area of its jurisdiction prior to issuance of process.

In view of the above, the impugned order dated 15.09.2021 is not sustainable in the eyes of law and, therefore, the same is hereby quashed. The matter is remanded back to the concerned Court below to pass fresh order, in accordance with law, after complying with the procedure laid down in Section 202(1) Cr.P.C. as discussed above, as expeditiously as possible.

Accordingly, the application u/s 482 Cr.P.C. is allowed.

Order Date :- 27.4.2023

Jitendra/-