Vinod Singh @ Vinod Kumar Singh And ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3201 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

       Court No. - 14
 
Case :- APPLICATION U/S 482 No. - 961 of 2023
 
Applicant :- Vinod Singh @ Vinod Kumar Singh And Another
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
 
Counsel for Applicant :- Ashish Gulati,Abhilash Mishra,Abhishek Sharma,Yogendera Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for the applicants, learned A.G.A. and perused the record.

2. In view of order proposed to be passed, issuance of notice to opposite party no.2 is dispensed with.

3. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 17.10.2022 passed by the Special Chief Judicial Magistrate, Custom Lucknow in Complaint No. 3209 of 2022 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short "D.V. Act"), Police Station-  Krishna Nagar , District- Lucknow.

4. Learned counsel for applicants has submitted that the applicant Nos. 1 and 2 are in-laws (Nand and Nandoi) of the complainant and they are living separately from the complainant and thus, they are not the family members of the complainant. The relief has been claimed by the complainant on behalf of the husband. It is further submitted that on perusal of the impugned summoning/notice dated 17.10.2022, it reveals that it was issued by the magistrate without any speaking order. Thus, the applicants have been summoned in Complaint No. 3209 of 2022, U/s 12 of the Protection of Women for Domestic Violence Act, 2005 by the magistrate by fill in the blanks in prescribed proforma without mentioning relevant sections of D.V. Act and date of issuance. Thus, the summon was issued against the applicants without application of judicial mind and in a very mechanical manner. Thus, it is also liable to be set aside.

5. The impugned order dated 17.10.2022 and summons which are annexed as Annexure Nos. 4 and 5 read as under:

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6. Learned A.G.A. vehemently opposed the prayer made by the learned counsel for the applicants and submitted that it is the discretionary power of the trial court to pass the summoning order and thus, the impugned summoning order has been passed by the magistrate after applying judicial mind.

7. In a judgment of this court in the case of Mahboob and others Vs. State of U.P. and another 2017 (98) ACC 593, it was held as under:

(6) In the case of Sonu Gupta versus Deepak Gupta (2015) Vol.3 SCC 424, it was held by the Hon'ble Apex Court that :-

"At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. (Para 8) "

(7) In a recent judgment delivered by Hon'ble the Apex Court on 14.12.2016 in Criminal Appeal No.1225 of 2016 (arising out of SLP(Crl.) No.9318 of 2012) Abhijit Pawar vs. Hemant Madhukar Nimbalakar & Anr. It was held that the 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 inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words that ''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 provisions casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.

(8) Referring the case law in Vijay Dhanuka vs. Najima Mamtaj (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) of 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 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."

8. On perusal of the impugned order dated 17.10.2022, it indicates that the order has been passed by the magistrate is cryptic without any speaking order.

9. So far as the relief sought by the opposite party no.2 is concerned, main grievance of the complainant is only in respect to her husband Vivek Kumar Singh for providing maintenance and against mother in law Padma Chauhan. Applicant Nos. 1 and 2 are brother in law (Nandoi) and sister in law (Nand) of the opposite party no.2/complainant respectively and have a separate living.

10. In view of the above facts and circumstances, the application is allowed and the impugned order dated 17.10.2022 passed against the applicants Vinod Singh and Vibha Singh, is hereby quashed. Learned Magistrate is hereby directed to pass a fresh order within a period of two months from the date of production of this order before him in the light of observations made herein above. Learned Magistrate passed the summoning order in prescribed printed proforma without mentioning the relevant sections of D.V. Act and date. This practice is highly deprecated. Moreover, learned Magistrate is warned to be careful in future while passing such type of orders in printed proforma by fill in the blanks.  

11. The Senior Registrar of this Court is directed to communicate this order to the trial court through District Judge, Lucknow for necessary compliance.

Order Date :- 1.2.2023

Shravan