Dismissed

Mobeen and 7 Others v. State of U.P. and Another

Allahabad HC4 Jul 2024A482/16087/2024

Case brief

AI extract

What is this about?

Applicants sought quashing of a summoning order in a complaint case under Sections 498A, 323, 504 IPC and Dowry Prohibition Act, arguing no mandatory Section 202 inquiry was done as they resided outside the Magistrate's jurisdiction. The court found statements recorded under Sections 200 and 202 constituted sufficient compliance and dismissed the application.

What the court decided

AI extract

Mobeen and 7 Others vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:133991

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(Sl.No.17)

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Court No. - 79

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Case :- APPLICATION U/S 482 No. - 16087 of 2024

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Applicant :- Mobeen And 7 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ayub Khan Counsel for Opposite Party :- G.A.

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Hon'ble Anish Kumar Gupta,J.

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Heard Sri Ayub Khan, learned counsel for the applicants and Sri Sunil Kumar Kushwaha, learned AGA for the State.

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The instant application u/S 482 Cr.P.C. has been filed by the applicants seeking quashing of the impugned order dated 24.5.2023 as well as entire proceedings of Complaint Case No.22403 of 2021 (Sunahri Khan vs. Mobeen and others) under Sections 498A, 323, 504 IPC and Section 3/4 of D.P. Act, Police Station-Hathras Junction, District-Hathras, pending in the court of Civil Judge (JD)/FTC-II, Hathras.

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Learned counsel for the applicants submits that the complaint was filed at Hathras and the applicants herein are residents of District-Aligarh, which is beyond the jurisdiction of learned Magistrate, therefore, it was mandatory upon the Magistrate to conduct inquiry as contemplated under Section 202 Cr.P.C. before summoning the applicants herein. Since no such inquiry has been conducted, the summoning order is bad in law. Learned counsel for the applicants also submits that the summoning order has been passed by the learned Magistrate without application of mind. Therefore, learned counsel for the applicants seeks quashing of the entire proceedings of the instant complaint case filed by the opposite party No.2.

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Per contra, learned AGA submits that though the inquiry under Section 202 Cr.P.C. is mandatory, if the accused is residing beyond the jurisdiction of the concerned Magistrate, however, scope of such inquiry is very limited. Once the Magistrate decides to enquire into the matter himself then the scope of inquiry is governed by sub-section 2, which mandates that during such inquiry the Magistrate may record the statements of witnesses under Sections 200 and 202 Cr.P.C. Since in the instant case, the sufficient compliance has been made by the Magistrate by recording the statement of witnesses under Sections 200 and 202 Cr.P.C., there is sufficient compliance of Section 202 Cr.P.C. and it cannot be said that there was no inquiry conducted by the Magistrate. So far as the other submission made by learned counsel for the applicant with regard to nonapplication of mind is concerned, the application of mind is apparent from perusal of the summoning order dated 24.5.2023, therefore, no interference is

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called for in the instant application.

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Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. The instant complaint case has been registered by the opposite party No.2 for the offences under Sections 498A, 323, 504 IPC and 3/4 D.P. Act. Since the applicants who are the accused were residing outside the jurisdiction of the learned Magistrate, the Magistrate has conducted the inquiry after recording the statements of the witnesses under Sections 200 and 202 Cr.P.C. thereupon vide a detailed order dated 24.5.2023 has summoned the applicants herein.

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6. Section 202 Cr.P.C. reads as under:

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" 202. Postponement of issue of process.

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(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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] [Inserted by Act 25 of 2005, Section 19 (w.e.f. 23-6-2006).] 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 :

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Provided that no such direction for investigation shall be made -

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

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(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.

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(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :

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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.

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(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 Court on an officer-in-charge of a police station except the power to arrest without warrant."

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From the aforesaid provisions, in case the accused is resident of beyond the jurisdiction of the Magistrate, it is mandatory to conduct an inquiry in terms of Section 202 (1), however, once the Magistrate decides to conduct such inquiry itself, scope of such inquiry is limited by sub-section 2 and such scope is at the discretion of the Magistrate to record the statement of witnesses or not. Once the Magistrate has recorded the statement of witnesses under Sections 200 and 202 Cr.P.C., it is sufficient compliance of Section 202 (1) & (2) Cr.P.C., therefore, no illegality is found in the summoning order. Since summoning order as has been perused by this Court has been passed in great detail, therefore, it cannot be said

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that there is no application of mind by the Magistrate before summoning the applicants.

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Therefore, this Court does not find any good reason to entertain this application and the same is, accordingly, dismissed.

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Order Date :- 21.8.2024 LN Tripathi

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(Anish Kumar Gupta,J.)

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Digitally signed by :- LALIT TRIPATHI High Court of Judicature at Allahabad

Mobeen and 7 Others v. State of U.P. and Another

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Mobeen and 7 Others v. State of U.P. and Another

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