Kamruddin vs State Of U.P. And Another
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Allahabad High Court

Kamruddin vs State Of U.P. And Another on 11 March, 2025

Author: Saurabh Srivastava

Bench: Saurabh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:35713
 
Court No. - 79
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 381 of 2025
 

 
Petitioner :- Kamruddin
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Anadi Krishna Narayana,Neeharika Sinha Narayana
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Saurabh Srivastava,J.
 

1. Heard Sri Anadi Krishna Narayana, learned counsel for petitioner and Sri Mahesh Kumar Shukla, Advocate holding brief of learned counsel for respondent no.2 as well as learned AGA.

2. By means of present petition, petitioner has assailed the entire proceedings of Complaint Case No.2367 of 2022 (Ali Mohammad Vs. Muveen and others) pending before learned Civil Judge (J.D.)/Judicial Magistrate, Jalesar, Etah and summoning order dated 01.02.2024 issued by learned court concerned in the said case as well as order dated 19.07.2022 passed by learned court concerned through complaint preferred by respondent no.2 was directed to be registered as complaint case.

3. Learned counsel for petitioner has challenged the summoning order dated 01.02.2024 on several other grounds inter-alia precisely on the ground that petitioner is the resident of District Aligarh and the summoning order has been passed by learned court concerned, Etah and as such, accused/petitioner is residing outside the territorial jurisdiction and as per provision of Section 202(1) CrPC, as soon as a complaint is given before the Magistrate, he shall either inquire into the case or pass order for investigation, if the accused is residing outside the territorial jurisdiction of the Magistrate concerned. But in the complaint case, no investigation has been made by any of the above authorized persons.

4. The provisions of Section 202 Cr.P.C. read as under:-

"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, [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-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) 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.

2. In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

3. If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant."

5. In support of his submissions, learned counsel for the petitioner placed reliance on a judgment of this court in the case of Mahboob and others Vs. State of U.P. and another 2017 (98) ACC 593. The relevant paragraphs of the said judgment are given below:-

"(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."

(9) In Mehmood UI Rehmand vs. Khazir Mohammad Tund (2016) 1 SCC (Cri) 124; it was held as under :

"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.

22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.

"Emphasis added."

(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:

"14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry " has been defined under Section 2(g) of the Code, the same reads as follows:

"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,"

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."

6. Per contra, learned counsel for respondent no.2 as well as learned AGA vehemently opposed the prayer sought through the instant petition but did not dispute the argument raised by learned counsel for petitioner in respect of Section 202(1) Cr.P.C.

7. By bare perusal of the summoning order dated 01.02.2024 as well as statements of respondent no.2 and other witnesses recorded U/s 200 & 202 Cr.P.C, it is crystal clear that no inquiry has been done by the learned court concerned prior to issuance of process and even learned court concerned did not direct the police officer for investigation in the matter.

8. The proceedings under Sections 200 Cr.P.C. is qua an inquiry proceeding under Section 202 (1) and therefore if a Magistrate has proceeded or inquired during the investigation under Sections 200 and 202 of Cr.P.C., separate proceeding for inquiry or investigation is not required. In the instant matter, neither learned court concerned in the proceeding under Sections 200 and 202 Cr.P.C. tried to inquire regarding the issue of territorial jurisdiction nor he has separately done any inquiry or directed for any investigation.

9. This Court is of the considered opinion that it is a settled law that if a thing is to be done in a manner prescribed in the Statue, then that has to be done in the same manner not otherwise. In the instant matter, it is, prima facie, a case where the mandate of provision of Section 202 (1) of Cr.P.C. has clearly been violated and thus, the order impugned is not tenable.

10. In view of the aforesaid discussions, impugned summoning order dated 01.02.2024 passed by learned Civil Judge (J.D.)/Judicial Magistrate, Jalesar, Etah in Complaint Case No.2367 of 2022, is hereby set aside, matter is hereby remitted back to learned court concerned to pass a fresh summoning order in light of observations made herein above, if required.

11. Accordingly, the instant petition is partly allowed.

Order Date :- 11.3.2025

Vivek Kr.

(Saurabh Srivastava, J.)