C482/895/2023
2023 Latest Caselaw 1324 UK

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                                  C482 No.895 of 2023
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Raj Kumar Singh, Advocate, for the applicant.

Mr. Ranjan Ghildiyal, Brief Holder, for the State of Uttarakhand.

The present applicant has been summoned to be tried by the Court of Chief Judicial Magistrate, Pauri, Pauri Garhwal, in Criminal Complaint Case No. 371 of 2023, Vimal Singh Negi Vs. Sompal Singh, for the offence under Section 138 of the Negotiable Instrument Act.

The applicant puts a challenge to the summoning order, on the ground, that there happens to be an apparent non-compliance of the provisions contained under Section 202 of the Cr.P.C..

In order to better appreciate the argument extended by the learned counsel for the applicant, a reference to the provisions contained under Section 202 of the Cr.P.C. is required to be made. The same 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. (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.

In case, if the simplicitor language of the provisions contained under Section 202 of the Cr.P.C. are taken into consideration, it can be made out that it is a procedure which is provided to the Magistrate, that prior to taking of cognizance, the Court is required to undertake an enquiry with regard to the processes as provided under the said provisions, and that too, the provisions themselves are not mandatory, because the Section uses the word "may" for the purposes of the Court to arrive at a satisfaction as to whether, the accused person is required to be summoned or not.

But, however, the reference of non-

compliance of Section 202 of the Cr.P.C., in the instant case, will be of no avail for the reason being, that if the summoning order itself is taken into consideration, particularly as that contained in para 3 of the said judgment, the learned Court of Chief Judicial Magistrate, prior to summoning the present applicant, did conduct an enquiry himself and its after going through the document on record, and after scrutinization of the same, he has observed his satisfaction necessitating the summoning of the present applicant in the complaint proceedings.

The tenacity of the argument of the learned counsel for the applicant is from the perspective, that as if the Court of Chief Judicial Magistrate, prior to summoning of an accused in a Complaint Case, is required to conduct a detailed trial by examination of the witnesses with accuracy in order to arrive at a satisfaction as to whether the summoning order is required to be issued or not.

There are two answers to it.

Firstly, a detailed enquiry or the investigation is not intended to be contemplated by the provisions to be conducted with precision, as contained under Section 202 of the Cr.P.C.

Secondly, it is only a prima face satisfaction, which has to be recorded by the Trial Court, to justify the summoning of the accused in a complaint case, and which could be by any processes provided therein, which is inclusive of the Court, itself to conduct an enquiry, which stands satisfied in view of the observations made in para 3 of the impugned summoning order.

Thirdly, this Court is of the view, that the enquiry contemplated under Section 202 of the Cr.P.C. is only for the purposes to enable the Court to satisfy itself as to whether at all the accused is required to be summoned or not.

The said non compliance of the provisions or partial compliance of the provisions contained under Section 202 of the Cr.P.C. is not a weapon, which is available to the accused person to be agitated in C-482 in his defence, as against the summoning order, by alleging, that there is a non compliance of Section 202 of the Cr.P.C., though it is not so in the instant case.

The basic intention of Section 202 of the Cr.P.C. and its purpose has been deliberated upon by the Hon'ble Apex Court in paras 20 and 23 of the judgment as reported in (2013) 1 SCC (Cri) 218, Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others, wherein, the Court has observed that the purpose of the aforesaid provisions contained under Section 202 of the Cr.P.C. would be met with, if the Court takes into consideration the basic parameters required for summoning of the accused person. In a complaint case, a detailed investigation is not necessary, which is covered by the processes contemplated under Section 202 of the Cr.P.C.

The aforesaid fact could very well be derived from the observations made in paras 20 and 23 of the said judgment, which are extracted hereunder:-

"20. Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker and another with reference to Section 202 of the Criminal Procedure Code, 1898 (corresponding to Section 202 of the present Code) held that the inquiry under Section 202 was for the purpose of ascertaining the truth or falsehood of the complaint, i.e., for ascertaining whether there was evidence in support of the complaint so as to justify the issuance of process and commencement of proceedings against the person concerned.

23. In Adalat Prasad, a three-Judge Bench of this Court had an occasion to consider Sections 200, 202 and 204 of the Code. The scheme of the above provisions was explained in the following manner:

"12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code.

13. Section 202 contemplates "postponement of issue of process". It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs 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, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code.

14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code."

Owing to the above, this Court is of the view, that the impugned summoning order does not suffer from the vices of non compliance of Section 202 of the Cr.P.C., because, as per the observations made therein, in fact, the Court had applied its mind and conducted an enquiry to satisfy itself to issue the summoning order, and since the provisions contained under Section 202 of the Cr.P.C. has been satisfied with, the C-482 Application is not required to be ventured into by exercising the inherent powers.

The same is accordingly dismissed.

(Sharad Kumar Sharma, J.) Dated 15.05.2023 Shiv