Udai Kumar Editor And Another vs State Of U.P. And Ors.
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Allahabad High Court

Udai Kumar Editor And Another vs State Of U.P. And Ors. on 2 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:25613
 
Court No. - 29
 

 
Case :- APPLICATION U/S 482 No. - 5476 of 2017
 

 
Applicant :- Udai Kumar Editor And Another
 
Opposite Party :- State Of U.P. And Ors.
 
Counsel for Applicant :- Ravindra Singh,Ashok Kumar Singh,Mahima Pahwa
 
Counsel for Opposite Party :- Govt. Advocate,Mohammad Alishah Faruqi,Qazi Sabihur Rahman,Rajesh Mishra
 

 
Hon'ble Shree Prakash Singh,J.
 

Rejoinder Affidavit filed on behalf of the applicants is taken on record.

Heard Ms. Mahima Pahwa, learned counsel for the applicants, learned A.G.A. for the State, Sri Rakesh Mishra, learned counsel for the opposite party no.3/ complainant.

The instant application under section 482 of Cr.P.C. has been filed with the prayer to quash the proceedings of Criminal Complaint Case No. 1178 of 2009, U/s 500 and 501(B) of the I.P.C.(Phoolkali Vs Munna Lal and Others) pending in the court of Additional Chief Judicial Magistrate, Kunda Pratapgarh/Respondent no. 2 including the summoning order dated 22-09-2010 and the Non Bailable Warrant (NBW) dated 03-08-2017 issued against the accused no. 3 & 4.

Contention of learned counsel for the applicants is that order passed by the learned A.C.J.M., Kunda dated 22-09-2010 is under challenge in this application on the ground that the order has been passed without application of mind as the summons have been issued under section 501 (B) alongwith section 500 of the I.P.C. as there is no such existence of provisions of section 501 (B) in the I.P.C.

She further argued that the order also assails the illegality as the compliance of mandate of section 202 (1) of the Cr.P.C. has not been complied with as the applicants are residing outside the territorial jurisdiction of the Magistrate, which is an admitted fact in between the parties, but, neither any enquiry or investigation is directed to be conducted by the trial court concerned.

In support of her contentions, she has placed reliance on the Judgment of the Hon'ble Supreme Court reported in (2017) 3 Supreme Court Cases 528, Abhijit Pawar Vs Hemant Madhukar Nimbalkar and Another and has referred paragraph nos. 23 to 26 of the aforesaid Judgment,which are quoted hereinunder :-

23. 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 b or investigation before issuing the process. Section 202 CrPC 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 c 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.

24. The essence and purpose of this amendment has been captured by this d Court in Vijay Dhanuka v. Najima Mamtajt in the following words: (SCC p. 644, paras 11-12)

"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 f 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."

25. For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. This requirement is emphasised by this Court in a recent judgment Mehmood U1 Rehman Vs. Khazir Mohammad Tunda11in the following words:

"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 12 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) CrPCfollowed by Section 204CrPC 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(2016) 1 SCC (Cri) 124before 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 202CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of 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 482CrPC 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."

26. The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. What kind of 'enquiry' is needed under this provision has also been explained in Vijay Dhanuka case10 , which is reproduced hereunder:

"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 thecomplainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the 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."

Referring the aforesaid, she added that this is settled proposition of law that if a proposed accused is residing outside the territorial jurisdiction of the Magistrate, the Magistrate shall initiate the proceedings under section 202(1) of the Cr.P.C., which is lacking in the present matter. Further submitted that the orders under challenge is not only suffer illegality but it's also hit by settled proposition of law. Therefore, submission is that the order dated 22-09-2010, whereby the summon is issued and the order dated 03-08-2017, by which the Non Bailable Warrant is issued, be quashed.

On the other hand, learned counsel appearing for the complainant though has opposed the matter on merits, but, he has fairly admitted the fact that there is a lacuna in the order passed by the learned trial court and therefore, he has no objection if the matter is remitted to the trial court for passing fresh order.

Learned counsel for the State has also opposed the case on merits, but, he could not rebut the contentions of learned counsel for the applicants regarding non application of mind as well as the order being against the mandate of section 202(1) of the Cr.P.C.

Considering the submissions of learned counsel for the parties and after perusal of material placed on record, particularly, the order passed in violation of section 202(1) of the Cr.P.C. as well as the admission on the part of learned counsel for the parties, this application deserves to be allowed.

Consequently, the proceedings initiated with regard to summoning order dated 22-09-2010 as well as the order for issuing non bailable warrant dated 03-08-2017 passed in Criminal Complaint Case No. 1178 of 2009, U/s 500 and 501(B) of the I.P.C.(Phoolkali Vs Munna Lal and Others) pending before the court of Additional Chief Judicial Magistrate, Kunda Pratapgarh/Respondent no. 2, are hereby set aside.

The matter is remitted back to the trial court concerned to take a fresh decision on it's own merits.

The application under section 482 Cr.P.C. is hereby allowed accordingly.

Order Date :- 2.5.2025

AKS