Allahabad High Court
Sangeeta And 5 Others vs State Of U.P. And Another on 27 March, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- APPLICATION U/S 482 No. - 41459 of 2022
Applicant :- Sangeeta And 5 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sunil Kumar Tiwari
Counsel for Opposite Party :- G.A.,Pramod Kumar Singh
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicants, Mrs. Priyanka Sharma, learned A.G.A., learned counsel for opposite party no.2 and perused the record.
By moving this application, the prayer is made to quash the summoning order dated 30.05.2022 as well as entire criminal proceedings of Complaint Case No. 2685 of 2019, under Sections 452, 427, 323, 504, 506 I.P.C., Police Station Hapur Dehat, District Hapur, pending before the Additional Chief Judicial Magistrate, Hapur.
It is submitted by the learned counsel for the applicants that as per the complaint itself, the opposite party no.2 is a resident of District Hapur, while all the applicants are the resident of District Meerut and as per Section 202 of the Cr.P.C., if the accused persons are from the district where the court concerned had no jurisdiction then the court has to embark upon an inquiry. Otherwise also, previously an FIR under Sections 498-A, 323, 307, 376, 377, 511, 506 I.P.C. and 3/4 Dowry Prohibition Act was lodged by the applicant no.2 against the opposite party no.2 on 13.09.2019. In counterblast of that FIR, the present complaint has been filed on 09.12.2019 by the opposite party no.2 against the applicants.
In support of his contention the counsel for the applicants has drawn the attention of the Court towards the judgment of Apex Court in National Bank of Oman Versus Barakara Abdul Aziz & Another, Special Leave Petition (Crl) No.9098 of 2012 decided on 03.12.2012, whereby it was held that there was no error in the view taken by the High Court that the C.J.M. Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 of the Cr.P.C. before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the C.J.M. Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 of the Cr.P.C. before issuing the process.
On the basis of the aforesaid judgment, it is submitted by the learned counsel for the applicants that in compliance of Section 202 of the Cr.P.C. the trial court had to either inquire into the case itself or direct an investigation to be made by a police officer, for the purpose of deciding whether or not there is sufficient ground for proceeding.
Learned A.G.A. and learned counsel for opposite party no.2 opposed the prayer and submitted that if magistrate thinks fit, only then, he would postpone the issue of process against the accused either inquire into the case himself or direct an investigation to be made by a police officer or any other person.
If we go through Section 202 (1) Cr.P.C., it runs as under:-
"(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, [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:"
In this section phrase "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" has been added by Code of Criminal Procedure Amendment Act, 25 of 2005 on 23rd June, 2006. According to this Section, in a case where the accused is residing at a place beyond the area in which the Magistrate concerned exercises his jurisdiction the enquiry is must, the provision is mandatory as word 'shall' has been used and the Magistrate has to mandatorily 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 some other person.
If we go through the impugned order, the trial court has only discussed the statements of PW-1 and PW-2 and has passed the cognizance order. The trial court has not ordered an enquiry in compliance of Section 202 (1) of Cr.P.C., hence, the order suffers from illegality.
The cognizance order dated 30.05.2022 passed by the Additional Chief Judicial Magistrate, Hapur is hereby set aside. The matter is remanded back with the direction to concerned Magistrate to go through the entire issue once again in the light of the observation made hereinabove and pass a fresh order positively within one month from the date of receiving the certified copy of this order.
The application under Section 482 Cr.P.C. stands allowed.
Order Date :- 27.3.2023
Radhika
