Kushla Nand vs Sunil Yadav
2022 Latest Caselaw 3336 UK

                  IN HIGH COURT OF UTTARAKHAND
                            AT NAINITAL
                Criminal Misc. Application No.1857 of 2022

Kushla Nand                                                        .....Applicant
                                               Vs.

Sunil Yadav                                                       .....Respondent
Advocate: Mr. Sanjay Bhatt, Advocate for the applicant.



Hon'ble Sharad Kumar Sharma, J.

The genesis of the present C-482 application, has its birth from the institution of the complaint case under Section 156(3) of Cr.P.C. which was registered as Complaint Case No.1051 of 2020 Sunil Yadav vs. Ranjeet Singh Samra and others. The proceedings, which were drawn by way of complaint case, was for the purposes of institution of a criminal proceedings under Section 500 of IPC, for the alleged act of defamation, owing to the certain publications which were said to have been made by the present applicant in the newspaper, which has been taken as to be the basis for registration of the complaint case on 04.10.2020. On the said complaint case, the cognizance have been taken by the court of Judicial Magistrate, Sitarganj, District Udham Singh Nagar, by passing an order to the said effect on 20.02.2021 and thereafter by issuance of the summoning order dated 07.09.2022, which is impugned in the present C-482 Application. There are two fold arguments, which has been raised by the learned counsel for the applicant:-

i. He submits that the summoning order happens to be in apparent violation of the provisions contained under Section 202 of Cr.P.C., because, the so called expected "inquiry", by the court was not conducted by the court, prior to issuance of process, owing to the fact that it was alleged by the applicant that the present applicant was a resident of Shivam Vihar Near Tirhari Residency, New Mothrowala Road, Dehradun, which was outside the territorial jurisdiction of the court.

ii. Whereas the complainant-respondent since being a resident of Police Station Sitarganj, District Udham Singh Nagar, and since the complaint was registered before the Judicial Magistrate, Sitarganj, District Udham Singh Nagar, the applicant would fall to be a resident outside the territorial jurisdiction of Judicial Magistrate, Sitarganj. Hence, compliance of Section 202 of Cr.P.C. was mandatory.

2. Sub Section (1) of Section 202 of Cr.P.C. is extracted hereunder:-

"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."

3. This Court is of the view that, the basic purpose of Section 202 of Cr.P.C., where it contemplates for conducting of an inquiry prior to issuance of a process to any person, who is resident beyond the area, in which the court exercises the jurisdiction is in order to ensure to avoid an unnecessary harassment to the opposite party, who has been summoned by calling upon him to participate in the criminal proceedings and that is why the language used under Section 202 of Cr.P.C. is that the Court "may either itself conduct an "inquiry" or may direct the investigation to be made by the Police Officer or by any other person as he thinks fit". The use of word inquiry, which has been harped upon by the learned counsel for the applicant, will not be read in parlance as to be an inquiry as it has been contemplated under service jurisprudence or in a disciplinary proceedings or an inquiry into a set of allegations, which is a subject matter of the criminal

proceedings. The term "inquiry" herein would mean from the prospective that it has to be a satisfaction which has to be recorded by the court necessitating the summoning of a person, who is resident of outside the territorial jurisdiction of the court, before whom the proceedings of the complaint case has been drawn, so the interpretation of the word "inquiry" as used herein, is not elaborate enough that it is a full-fledged drawn proceedings, which has to be resorted to by the court before issuance of process, that is why the legislature has used the word "may" conduct enquiry.

4. Apart from the aforesaid logic with regards as to what is the legislative intent of the use of word "inquiry" in Sub Section (1) of Section 202 of Cr.P.C., this Court is not satisfied with the argument which has been extended by the learned counsel for the applicant, to the summoning order dated 20.02.2021 because, if the summoning order itself is read in its totality and particularly the observations, which has been made therein in the second paragraph of the said impugned judgment, the finding which has been recorded therein, where the Court records its reasoning while considering the material, which was placed before it, that in itself will amount to be a satisfaction recorded by the Court, which will be an "inquiry" within itself which was conducted by the Court, prior to summoning a person, who is a resident outside the territorial jurisdiction of the court and for the aforesaid purpose reference to (page 25 of the 482 application which is part of the judgment becomes relevant). The observations made therein by the Court about the impact of an inquiry under Section 202 of Cr.P.C. stands satisfied because there is an application of mind and an elaborate by the Court while considering the material, which will be an alternative a substitute of an inquiry which has been conducted by the Court necessitating the present applicant to be summoned by the Court.

5. The second limb of argument of the learned counsel for the applicant is that as to whether at all the offence under Section 500 IPC, is made out against the present applicant necessitating for him to be summoned before the Court. Section 500 IPC, which contemplates a punishment for defamation. A defamation is a very vague term, which can only be scrutinised and concluded to have been committed when the material is

made, as a subject matter of trial to be considered by the Court. The argument of learned counsel, is that the matter would fall to be outside the ambit of defamation and that has been argued, on the pretext that the paper publication made by the applicant on 03.03.2020 as published in Dainik Jagran Annexure No.1. The second publication of which the reference has been made as published on 03.03.2020 (pg 13) of the C-482 Application, the publication as made on 04.03.2020 (page 15) of the C-482 application and lastly the publication of 04.03.2020 (page 17) of the C-482 application, whether at all these publication, made by applicant, constitutes as to be a defamation or not would still be a subject matter of trial by the court on appreciation of evidence because each element of a set of allegations or an observation made by way of a report in the newspaper, whether it defames the prestige of the complainant or not will only to be a subject matter, which could be decided by the trial court only after providing an adequate opportunity to the parties to lead their respective evidence. The interpretation given to the publication by the learned counsel for the applicant will not fall for consideration within the zone of exercise of powers by the courts under Section 482 of the Cr.P.C., as deep and pervasive scrutiny to the evidence is not a subject matter, which is contemplated to be resorted to by the court while exercising its powers under Section C-482 of the Cr.P.C.

6. That is what has been contemplated by the judicial pronouncements laid down by the Court, as that when the Hon'ble Apex Court in a judgment reported in JT 2010 (6) SC 588 State of Andhra Pradesh vs. Gourishetty Mahesh & others has observed that the High Court while exercising its powers under Section C-482 of Cr.P.C. will not embark upon an inquiry into the evidence, in question whether it is reliable or not, to make out an offence, which has been complaint of in the FIR or in a proceeding by way of complaint case. The appreciation of set of an acquisition would be a subject matter of trial and that is why the Hon'ble Apex Court in yet another judgment reported in (2008) 8 SCC 781 Dr. Monica Kumar & Another vs. State of Uttar Pradesh & Others and a judgment reported in (2006) 7 SCC 296 Popular Muthiah vs. State represented by Inspector of Police has observed that the High Court while exercising its inherent powers under Section 482 of Cr.P.C., has to exercise the powers very sparingly and should

not be resorted to in a similar manner, as if it is a remedy to appeal or a revision, where the evidence could be appreciated. There has to be a caution, which has to be exercised by the High Court, not to venture out to appreciate an evidence to drawn a conclusion on its own as to whether an offence is made out or not particularly, when the aspect of defamation herein is sought to be attracted after scrutinization of the alleged paper publication, which has been referred to hereinabove, what implication or impact would it carry and how it could be interpreted by the complainant would be a subject matter of trial to be decided by the Judicial Magistrate, who is seized with the proceedings after the issuance of the summoning order.

7. For the aforesaid reasons, this Court is of the view that under either of the circumstances of the arguments which has been extended by the learned counsel for the applicant, the exercise of inherent powers under Section 482 of Cr.P.C. is not made out in the circumstances of the present case. Hence, the C-482 application lacks merits and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 15.10.2022 Arti