This single-judge oral judgment quashes a summoning order and remands the matter to the Magistrate under Section 202 Cr.P.C., holding that enquiry was mandatory before process issuance when the accused resided beyond jurisdiction.
Impugned order set aside; matter remanded to Magistrate to pass fresh orders complying with Section 202 Cr.P.C.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 555 of 2014
(Under Section 482 Cr.P.C.)
Amar Singh ...….…… Applicant
versus
Drugendra Kumar Mishra ………. Respondent
Mr. Raj Kumar Singh Verna, Advocate present for the applicant. Mr. Pankaj Mighlani, Advocate present for the respondent.
U.C. Dhyani, J. (Oral)
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Provided that no such direction for investigation shall be made–
“8.We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 Cr.P.C. before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the CJM, Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 Cr.P.C. before issuing the process.”
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“9. The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:
(i) on the materials placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
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“and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,”
The notes on clauses for the abovementioned amendment read 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 persons as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.”
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“12. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 Cr.P.C. Hence, we remit the matter to the Magistrate for passing fresh order uninfluenced by the prima faice conclusion released by the High Court that the bare allegation of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 Cr.P.C., within two months from the date of receipt of this order.”
SH
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2 issues framed by the court
Whether the impugned order under Section 482 Cr.P.C. should be set aside because the Magistrate failed to comply with Section 202 Cr.P.C. before summoning the accused residing beyond jurisdiction?
What direction should the High Court give to the Magistrate upon finding non-compliance with Section 202 Cr.P.C.?
Colour shows how this judgement treated each authority
National Bank of Oman vs. Barakara Abdul & AnotherRelied on¶14
National Bank of Oman vs. Barakara Abdul & Another, (2013) 2 Supreme Court Cases 488
2 provisions across 1 enactments
Amar Singh
Drugendra Kumar Mishra
U.C. Dhyani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
