Allahabad High Court
Deepika Chandani vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 8 May, 2024
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:35521
Court No. - 29
Case :- APPLICATION U/S 482 No. - 4233 of 2024
Applicant :- Deepika Chandani
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others
Counsel for Applicant :- Daya Shanker Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Renu Agarwal,J.
1. Heard learned counsel for the petitioner, learned AGA for the State and perused the entire material brought on record.
2. Instant petition under Section 482 Cr.P.C. is preferred by the petitioner for quashing of the entire criminal proceeding of complain case No. 45420 of 2023 under Section 405, relating to Police STation-Hasanganj, District-Lucknow, pending before the learned Court of Judicial Magistrate-II, District Lucknow as well as summoning order dated 29.01.2024 passed by the learned Court of Judicial Magistrate-II, Lucknow.
3. It is submitted by learned counsel for the petitioner that a complaint was filed by opposite party No. 2 that her daughter-in-law left the house of the complainant taking away with her jewellery given by her at the time of Grah Pravesh. On the basis of complaint, Judicial Magistrate recorded the statement of complainant under Section 200 Cr.P.C. and statement of witnesses under Section 202 Cr.P.C. and without conducting inquiry under Section 202(1) Cr.P.C. summoned the applicant. It is also contended that there is no entrustment of jewellery to the applicant and there is no dishonest intention disclosed in the complaint. It is further contended that learned trial court without going through the merit of the case and without complying the mandatory provision under Section 202(4) Cr.P.C. summoned the applicant, hence, the summoning order is liable to be quashed.
4. Learned AGA for the submitted that the jewellery was entrusted to the applicant at the time of Grah Pravesh by the complainant of this case and the jewellery has not yet been returned by the applicant, hence, the summoning order is in conformity with law and the instant petition deserves to be dismissed.
5. I have heard the rival submissions advanced on behalf of the parties and perused the entire materials brought on record. From the perusal of record, it transpires that few jewellery was handed over to applicant at the time of Grah Pravesh. Whether there is any discontent, entrustment or dis-honest intention is to be proved during the course of trial. So far as the inquiry under Section 202(1) Cr.P.C. is concerned, learned counsel for the applicant relied upon the judgment passed by co-ordinate Bench of this Court on 17.02.2020 in Application U/s 482 No. 4191 of 2020 (Sachin Dahiya and 2 Ors. Vs. State of U.P. and Anr.). Before proceeding further in the matter, it would be apposite to reproduce hereinbelow Section 202(1) of the Cr.P.C., which reads thus:-
"202. (Postponement of issue of process)
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;
Provided that no such direction for investigation shall be made?
1. where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
2. 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."
6. By the amendment of 2006 the inquiry which was discretionary to the court was made mandatory by exertion of amendment, if the accused resides beyond the jurisdiction of court.
7. Perusal of the order sheet of the trial court reveals that 29.01.2024 was fixed for statement of witnesses under Section 200 Cr.P.C. Learned trial court instead of recording the statement of witnesses under Section 202 passed the summoning the order without any inquiry. No order of inquiry was passed by the court. The impugned order goes to show that the learned trial court has not complied with the provisions of Section 202(1) Cr.P.C., hence, the summoning order suffers infirmity and is liable to be quashed.
8. In view of the discussions as above, impugned order is hereby quashed.
9. Learned trial court is directed to comply with the provisions of Section 202(1) Cr.P.C. and after giving due opportunity of hearing to the parties pass the order afresh.
(Renu Agarwal,J.)
Order Date :- 8.5.2024
Karan
