# Aman Pandey v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 1054
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-19
- **Case number:** Crl. Misc. Appl. u/s 482 No. 13262 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aman-pandey-v-state-of-u-p-anr-opp-parties-46098
- **Pages:** 12

## Headnote

A. Criminal Law - Application u/s 482 -
Quashing of order on the ground of
jurisdiction - Code of Criminal Procedure:
Section 202; Indian Penal Code: Section
420, 504, 506 - The inquiry or the
investigation as the case may be, by the
Magistrate
is
mandatory
where
the
accused is residing beyond the area of
exercise of his jurisdiction. It is aimed to
prevent innocent persons from harassment by
unscrupulous persons from false complaints.
(Para 14, 18)

The expression 'shall' is ordinarily read as
mandatory. Lack of material particulars
and non-application of mind as to the
materials cannot be brushed aside as a
procedural irregularity. A bare perusal of
S.202 Cr.P.C. shows that in a case in which the
accused is residing at a place beyond the area
in
which
the
Magistrate
exercises
his
jurisdiction, he shall postpone issue of process
against the accused and shall hold an enquiry
either by himself or direct investigation to be
made by a Police Officer or by such other
person as the Magistrate thinks fit, for the
purpose of deciding whether or not there is
1 All. Aman Pandey Vs. State of U.P. & Anr.
1055
sufficient ground for proceeding against the
accused. The use of the expression 'shall' makes
it mandatory for the Magistrate to hold the
inquiry contemplated by the section where the
accused
resides
beyond
the
territorial
jurisdiction of the concerned Magistrate. The
inquiry may be made by the Magistrate himself
or he may direct investigation to be carried by
the Police Officer or by such other person as he
thinks fit. (Para 11)

In the inquiry envisaged u/s 202 Cr.P.C. the
witnesses are examined and this exercise by the
Magistrate is an inquiry for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the accused. If
witnesses have been examined it cannot be said
that any inquiry as contemplated by amended
S.202 Cr.P.C. was not held. (Para 18)

In the present case, two witnesses were
examined u/s 202 Cr.P.C. Therefore, the present
is not a case of no inquiry or no investigation as
mandated by S.202 Cr.P.C. (Para 21, 25)

B. Code of Criminal Procedure: Section 2(g),
202 - "Inquiry" - Every inquiry other than a
trial conducted by the Magistrate or Court.
No specific mode or manner of inquiry is provided
u/s 202 Cr.P.C. In the inquiry envisaged u/s 202
Cr.P.C. the witnesses are examined and this
exercise by the Magistrate for the purpose of
deciding, whether or not there is sufficient ground
for proceeding against the accused, was held,
nothing but an enquiry u/s 202 of the Code. The
order of the Magistrate must indicate that he has
made inquiry and on such inquiry he is prima facie
satisfied that a case for summoning is made out.
(Para 15, 23, 27)

C. It is not proper for the High Court to
embark upon an enquiry in respect of the
accusations.
While
exercising
inherent
jurisdiction
u/s
482
Cr.P.C.
or
revisional
jurisdiction u/s 397 of the Code in a case where
complaint is sought to be quashed, it is not
proper for the High Court to consider the
defence of the accused or embark upon an
enquiry in respect of the accusations. (Para 29)

Writ Petition dismissed. (E-3)

Precedent followed:

## Text

_Characters 0–39,956 of 41,192. This is a partial read: ask again with offset=39956 for what follows._

1054 INDIAN LAW REPORTS ALLAHABAD SERIES
offence has been committed and prayed for
suitable action against the culprits, is
sufficient to treat the same as a complaint.

15. It is clear that initially vide
notification dated 02.08.1984 Government
of U.P. has treated the offence under
Section 506 I.P.C. as cognizable and nonbailable. The aforesaid promulgation of
Government of U.P. was declared illegal by
the Court in the case of Virendra Singh
(Supra). At present there is no doubt that
the offence under Section 506 IPC is noncognizable and bailable. In light of
proposition of law as mentioned above,
there is no room to doubt that case filed
under Section 506 IPC cannot be proceeded
as police case and the learned Magistrate
should treat it as a complaint case.

16. In view of the observations made
above, learned court below has illegally
proceeded on the police report without
applying his judicial mind inasmuch as all
the offence as mentioned in the NCR as
non-cognizable and proper course of action
for the Magistrate is to treat the matter as a
complaint under the provision as enshrined
under Explanation to Section 2(d) Cr.P.C.

17. Considering the above, no useful
purpose would be served in keeping the
present application pending any further.
The charge sheet dated 14.04.2015 is
hereby quashed and the matter is remitted
to the learned Magistrate to pass a fresh
order, strictly in accordance with law,
keeping in mind the observations made
above.

18. The aforesaid exercise may be
concluded as expeditiously as possible,
preferably within a period of two months
from the date of production of a certified
copy of this order.

19. With the aforesaid observations,
the present application is allowed.
----------
(2021)01ILR A1054
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Crl. Misc. Appl. u/s 482 No. 13262 of 2020

Aman Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Rajesh Kumar, Sri Shiv Nath Singh

Counsel for the Opp. Parties:
A.G.A.

A. Criminal Law - Application u/s 482 -
Quashing of order on the ground of
jurisdiction - Code of Criminal Procedure:
Section 202; Indian Penal Code: Section
420, 504, 506 - The inquiry or the
investigation as the case may be, by the
Magistrate
is
mandatory
where
the
accused is residing beyond the area of
exercise of his jurisdiction. It is aimed to
prevent innocent persons from harassment by
unscrupulous persons from false complaints.
(Para 14, 18)

The expression 'shall' is ordinarily read as
mandatory. Lack of material particulars
and non-application of mind as to the
materials cannot be brushed aside as a
procedural irregularity. A bare perusal of
S.202 Cr.P.C. shows that in a case in which the
accused is residing at a place beyond the area
in
which
the
Magistrate
exercises
his
jurisdiction, he shall postpone issue of process
against the accused and shall hold an enquiry
either by himself or direct investigation to be
made by a Police Officer or by such other
person as the Magistrate thinks fit, for the
purpose of deciding whether or not there is
1 All. Aman Pandey Vs. State of U.P. & Anr.
1055
sufficient ground for proceeding against the
accused. The use of the expression 'shall' makes
it mandatory for the Magistrate to hold the
inquiry contemplated by the section where the
accused
resides
beyond
the
territorial
jurisdiction of the concerned Magistrate. The
inquiry may be made by the Magistrate himself
or he may direct investigation to be carried by
the Police Officer or by such other person as he
thinks fit. (Para 11)

In the inquiry envisaged u/s 202 Cr.P.C. the
witnesses are examined and this exercise by the
Magistrate is an inquiry for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the accused. If
witnesses have been examined it cannot be said
that any inquiry as contemplated by amended
S.202 Cr.P.C. was not held. (Para 18)

In the present case, two witnesses were
examined u/s 202 Cr.P.C. Therefore, the present
is not a case of no inquiry or no investigation as
mandated by S.202 Cr.P.C. (Para 21, 25)

B. Code of Criminal Procedure: Section 2(g),
202 - "Inquiry" - Every inquiry other than a
trial conducted by the Magistrate or Court.
No specific mode or manner of inquiry is provided
u/s 202 Cr.P.C. In the inquiry envisaged u/s 202
Cr.P.C. the witnesses are examined and this
exercise by the Magistrate for the purpose of
deciding, whether or not there is sufficient ground
for proceeding against the accused, was held,
nothing but an enquiry u/s 202 of the Code. The
order of the Magistrate must indicate that he has
made inquiry and on such inquiry he is prima facie
satisfied that a case for summoning is made out.
(Para 15, 23, 27)

C. It is not proper for the High Court to
embark upon an enquiry in respect of the
accusations.
While
exercising
inherent
jurisdiction
u/s
482
Cr.P.C.
or
revisional
jurisdiction u/s 397 of the Code in a case where
complaint is sought to be quashed, it is not
proper for the High Court to consider the
defence of the accused or embark upon an
enquiry in respect of the accusations. (Para 29)

Writ Petition dismissed. (E-3)

Precedent followed:
1. National Bank of Oman Vs Barkara Abdul Aziz
& anr., (2013) 2 SCC 488 (Para 5)

2. Mohammad Illiyas and Others Vs St. of U.P. &
anr., Application u/s 482 Cr.P.C. No. 30477 of
201, decided on 18.09.2018 (Para 5)

3. Vijay Dhanuka Vs Najzma Mamtaj, (2014) 14
SCC 638 (Para 7)

4.
Birla
Corporation
Ltd.
Vs
Advertez
Investments and Holdings, (2019) 16 SCC 610
(Para 7)

5. Smt. Parvender Kaur & anr. Vs St. of U.P. &
anr., Application u/s 482 Cr.P.C. No. 27369 of
2018, decided on 12.09.2018 (Para 19)

6. Arvind Kumar Chaurasiya and another Vs St.
of U.P. & anr., Application u/s 482 Cr.P.C. No.
27788 of 2018, decided on 27.08.2018 (Para
19)

7. R.R. Kaur Vs St. of Pun., AIR 1960 SC 866
(Para 27)

8. St. of Har. Vs Bhajan Lal, (1992) SCC 426
(Para 27)

9. Sonu Gupta Vs Deepak Gupta, (2015) 3 SCC
424 (Para 28)

10. Harshendra Kumar Vs Rebatilata Koley &
others, (2011) 3 SCC 351 (Para 29)

Present application has been filed for
quashing the summoning order dated
08.08.2019, passed
by Chief Judicial
Magistrate, Maharajganj.

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri Shiv Nath Singh, Senior
Advocate assisted by Shri Rajesh Kumar,
learned counsel for the applicant, Shri
Pankaj Saxena, learned A.G.A. for the
State and perused the material on record.

2. This application under Section 482
Cr.P.C. has been filed by the applicant for
quashing the summoning order dated
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
08.08.2019
passed
by
learned
Chief
Judicial
Magistrate,
Maharajganj
in
Complaint
Case
No.
265
of
2019
(Razabuddin Khan versus Aman Pandey)
under Sections 504 and 506 I.P.C., Police
Station-Sonauli, District-Maharajganj and
also the impugned order dated 05.03.2020
passed
by
learned
Sessions
Judge,
Maharajganj in Criminal Revision No. 113
of 2019 (Razabuddin versus State of U.P.
and others), pending before the court of
learned
Chief
Judicial
Magistrate,
Maharajganj.

3. The facts of the case in brief are
that the applicant is the Manager of
Satyamev
Educational
Services.
The
opposite party no. 2 requested the applicant
for education of his daughter in M.B.B.S.,
whereupon the applicant produced the list
of the institutions and the opposite party
no. 2 had chosen PASCOV University
Russia which has recognition from the
Medical Council of India and W.H.O. The
daughter of the opposite party no. 2 in all
awareness of the conditions of admission
applied for admission of M.B.B.S. Course
in
PASCOV
University
Russia
on
08.07.2017 and the said University issued a
letter
for
her
admission.
She
took
admission but she did not fulfil the
conditions of that University during the
course of her studies and also did not attend
the classes. Later on, the opposite party no.
2 filed complaint with malafide intention
and on incorrect facts that the applicant
deceived the complainant as in the said
University the education as desired by the
complainant in a particular course was not
being imparted.

4. The Magistrate after recording the
statement of the complainant and of the
witnesses passed the summoning order
dated 08.08.2019 summoning the applicant
under Sections 504 and 506 I.P.C. The
complainant filed Criminal Revision No.
113 of 2019 (Rajabuddin versus State of
U.P.
and
another)
challenging
the
summoning order on the ground inter alia
that the accused should also have been
summoned under Section 420 I.P.C. on the
material available on record. The criminal
revision was allowed by judgment dated
05.03.2020 and thereby the summoning
order dated 08.08.2019 was set aside and
the trial court was directed to pass
summoning order afresh in accordance with
the directions given in that judgment, after
hearing the complainant in accordance with
law.

5. Learned counsel for the applicant
submits that the summoning order is bad in
as much as the Magistrate at Maharajganj
had no jurisdiction in the matter since the
alleged offence was committed not at
Maharajganj but at Lucknow. He further
submits that the accused persons are
residents of a place outside the territorial
jurisdiction of the Magistrate, Maharajganj
and as such enquiry under Section 202
Cr.P.C. must have been held which has not
been held and therefore, the order is bad.
Learned counsel for the applicant has
placed reliance on the judgment of Hon'ble
the Supreme Court in National Bank of
Oman versus Barakara Abdul Aziz &
Another (2013) 2 SCC 488 and of this
Court in Mohammad Illiyas and 2 Others
versus State of U.P. and another in
Application under Section 482 Cr.P.C. No.
30477 of 2018 decided on 18.09.2018.

6. Learned counsel for the applicant
further submits that there are contradictions
in the statement of the complainant and the
witnesses. The complaint has been lodged
in the year 2019 with respect to the incident
of 2017. The daughter of the complainant
1 All. Aman Pandey Vs. State of U.P. & Anr.
1057
studied for one year in the concerned
University at Russia but when she could
not complete her education she on her own
left the University and took admission in
some other Institution. It is only after one
year that the daughter of the complainant
came to know what kind of studies was
being imparted at the University of Russia
which, as per the submission, is highly
improbable. His further submission is that
the complaint has been lodged maliciously
and with malafide intention.

7. Learned A.G.A. submits that as per
the averments of the complaint, the incident
for the alleged offence is also at Sonauli
which is part of District Maharajganj. With
respect to the enquiry under Section 202
Cr.P.C., it has been submitted by the
learned A.G.A. that such enquiry was held
as two witnesses were examined under
Section 202 Cr.P.C. He submits that no
particular mode of enquiry is prescribed
under the Code. The statement of the
witnesses recorded under Section 202
Cr.P.C. is also an enquiry. Learned A.G.A.
has placed reliance on the judgment in the
case of Vijay Dhanuka versus Najzma
Mamtaj (2014) 14 SCC 638 and in ''Birla
Corporation
Ltd
versus
Adventz
Investments And Holdings (2019) 16
SCC 610.

8. I have considered the submissions
advanced by the learned counsel for the
applicant and the learned A.G.A. and
perused the material on record.

9. So far as the jurisdiction of the
Magistrate at Maharajganj is concerned, from
perusal of the complaint and the statement
recorded, it is evident that it has been stated
that the incident started at Sonauli. Some
money was also transferred from the account
of the complainant which is at Maharajganj.
In view of the specific averments to the
above effect, the submission of the learned
counsel for the applicant that the Magistrate
at Maharajganj had to jurisdiction has no
substance and is accordingly rejected.

10. So far as, the question of holding of
an inquiry by the learned Magistrate under
section 202 Cr.P.C. in cases where the
accused persons are residing at a place
beyond the area of the territorial jurisdiction
of the Magistrate, is concerned, it is relevant
to reproduce section 202 Cr.P.C. as amended
w.e.f 23.06.2006 which reads as under:-

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
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

11. A bare perusal of section 202
Cr.P.C. shows that in a case in which the
accused is residing at a place beyond the
area in which the Magistrate exercises his
jurisdiction, he shall postpone issue of
process against the accused and shall hold
an inquiry either by himself or direct
investigation to be made by a Police
Officer or by such other person as the
Magistrate thinks fit, for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the accused.
The use of the expression ''shall' makes it
mandatory for the Magistrate to hold the
inquiry contemplated by the section where
the accused resides beyond the territorial
jurisdiction of the concerned Magistrate.
The expression ''shall' is ordinarily read as
mandatory. The inquiry may be made by
the Magistrate himself or he may direct
investigation to be carried by the police
Officer or by such other person as he thinks
fit. The scope of inquiry under section 202
Cr.P.C. is limited to ascertain the truth or
falsehood of the allegations made in the
complaint for the limited purpose of
finding out whether a prima facie case for
issue of process is made out or not. The
issuance of process to the accused calling
upon him to appear in the criminal cases is
a serious matter. The law imposes a serious
responsibility on the Magistrate to decide,
if, there is sufficient ground for proceeding
against the accused. Issuance of process
should not be mechanical nor should it be
made as an instrument of harassment to the
accused. Lack of material particulars and
non-application of mind as to the materials
cannot be brushed aside as a procedural
irregularity.

12. In "National Bank of Oman Vs.
Barakara Abdul Aziz reported in 2013
(2) SCC 488" the facts were that the
accused
was
residing
out
side
the
jurisdiction of the Chief Judicial Magistrate
concerned and he failed to carry out any
inquiry
or
order
investigation
as
contemplated under the amended section
202 Cr.P.C. which amendment was not
noticed by the learned Magistrate, and the
process was issued on perusal of the
complaint and the documents attached
thereto, the Hon'ble Supreme Court held
that the order passed by the Magistrate was
illegal and the High Court acted in
accordance with law in setting aside the
said order. It is relevant to reproduce
paragraph nos. 8, 9, 10 , 11 and 12 of
National Bank of Oman (Supra) as
under:-

"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 CrPC
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 CrPC before issuing the
process.

9. The duty of a Magistrate receiving a
complaint is set out in Section 202 CrPC
and there is an obligation on the
Magistrate to find out if there is any matter
1 All. Aman Pandey Vs. State of U.P. & Anr.
1059
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 CrPC is
different
from
the
investigation
contemplated in Section 156 as it is only
for holding the Magistrate to decide
whether or not there is sufficient ground for
him to proceed further. The scope of
enquiry under Section 202 CrPC 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.

10. Section 202 CrPC was amended
by the Code of Criminal Procedure
(Amendment) Act, 2005 and the following
words were inserted:

"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 subsection (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 amendment has come into force
w.e.f. 23-6-2006 vide Notification No. S.O.
923(E) dated 21-6-2006.

11. We are of the view that the High
Court
has
correctly
held
that
the
abovementioned
amendment
was
not
noticed by the CJM Ahmednagar. The CJM
had failed to carry out any enquiry or
order investigation as contemplated under
the amended Section 202 Cr.P.C. Since it is
an admitted fact that the accused in
residing outside the jurisdiction of the
CJM, Ahmednagar, we find no error in the
view taken by the High Court.

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 orders
uninfluenced by the prima facie conclusion
reached by the High Court that the bare
allegations of cheating do not make out a
case against the accused for issuance of
process under Section 418 or 420 I.P.C.
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. "

13. In "Vijay Dhanuka etc Vs.
Nazima Mamtaj etc reported in 2014 (14)
SCC 638" wherein also the residence of the
accused was shown at a place beyond the
territorial jurisdiction of the Magistrate and
the Magistrate had issued process after
examination of the complainant and two
witnesses,
questions
arose
for
determination (i) whether it was mandatory
to hold inquiry or investigation for the
purpose of deciding whether or not there
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
was sufficient ground for proceeding, and
(ii) whether the learned Magistrate before
issuing summons had held the inquiry as
mandated by section 202 Cr.P.C.

14. In Vijay Dhanuka etc. (Supra)
the Hon'ble Supreme Court held that in a
case where accused is residing at a place
beyond the area in which the Magistrate
exercises
his
jurisdiction,
inquiry
or
investigation as the case may be, by the
Magistrate is mandatory, which is aimed to
prevent innocent persons from harassment
by
unscrupulous
persons
from
false
complaints.

15. On the point, if inquiry as
mandated by section 202 Cr.P.C was held
by the Magistrate, the Hon'ble Supreme
Court in Vijay Dhanuka etc (Supra) held
that "inquiry" as defined under section 2(g)
of the Code of Criminal Procedure means
every inquiry other than a trial conducted
by the Magistrate or Court. No specific
mode or manner of inquiry is provided
under section 202 Cr.P.C. In the inquiry
envisaged under section 202 Cr.P.C. the
witnesses are examined and this exercise
by the Magistrate for the purpose of
deciding, whether or not there is sufficient
ground for proceeding against the accused,
was held, nothing but an inquiry under
section 202 of the Code.

16. It is relevant to reproduce
paragraph nos. 11 to 16 of Vijay Dhanuka
(Supra) as under:-

"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 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 subsection (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
1 All. Aman Pandey Vs. State of U.P. & Anr.
1061
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.

13. In view of the decision of this Court
in Udai Shankar Awasthi v. State of U.P.
[(2013) 2 SCC 435 : (2013) 1 SCC (Civ)
1121 : (2013) 2 SCC (Cri) 708] , this point
need not detain us any further as in the said
case, this Court has clearly held that the
provision aforesaid is mandatory. It is apt to
reproduce the following passage from the
said judgment: (SCC p. 449, para 40)

"40.
The
Magistrate
had
issued
summons without meeting the mandatory
requirement of Section 202 CrPC, though the
appellants were outside his territorial
jurisdiction. The provisions of Section 202
CrPC were amended vide the Amendment
Act, 2005, making it [Ed.: The matter
between
the
two
asterisks
has
been
emphasised in original as well.] mandatory
to postpone the issue of process [Ed.: The
matter between the two asterisks has been
emphasised in original as well.] where the
accused resides in an area beyond the
territorial jurisdiction of the Magistrate
concerned. The same was found necessary in
order to protect innocent persons from being
harassed by unscrupulous persons and
making it obligatory upon the Magistrate to
enquire into the case himself, or to direct
investigation to be made by a police officer,
or by such other person as he thinks fit for the
purpose of finding out whether or not, there
was sufficient ground for proceeding against
the accused before issuing summons in such
cases."

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 the complainant 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.

15. In the present case, as we have
stated earlier, the Magistrate has examined
the complainant on solemn affirmation and
the two witnesses and only thereafter he
had directed for issuance of process.

16. In view of what we have observed
above, we do not find any error in the
order impugned [Vijay Dhanuka, In re,
Criminal Revision No. 508 of 2013, order
dated 19-2-2013 (Cal)] . In the result, we
do not find any merit in the appeals and the
same are dismissed accordingly."

17. In the Case of "Birla Corporation
limited Vs. Adventz Investments and
holdings 2019 (16) SCC 610" the Hon'ble
Supreme Court has reiterated the same
proposition of law that at the stage of
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry under section 202 Cr.P.C the
Magistrate is only concerned with the
allegations made in the complaint or the
evidence in support of the averments in the
complaint to satisfy himself that there is
sufficient ground for proceeding against the
accused.

18. Thus, the law as settled is that the
inquiry or the investigation as the case may
be, by the Magistrate is mandatory where
the accused is residing beyond the area of
exercise of his jurisdiction. In the inquiry
envisaged under section 202 Cr.P.C the
witnesses are examined and this exercise
by the Magistrate is an inquiry for the
purpose of deciding whether or not there is
sufficient ground for proceeding against the
accused. If witnesses have been examined
it cannot be said that any inquiry as
contemplated by amended section 202
Cr.P.C. was not held.

19. In the case of Smt. Parvender
Kaur and Another versus State of U.P.
and Another passed in Application under
Section 482 Cr.P.C. No. 27369 of 2018
decided on 12.09.2018", and in the case of
"Arvind Kumar Chaurasiya and another
versus State of U.P. and Another passed in
Application under Section 482 Cr.P.C. No.
27788 of 2018 decided on 27.08.2018", this
Court held that the Magistrate before
issuing
process
after
invoking
this
provision should satisfy himself that the
complaint filed against the person residing
outside the jurisdiction of the court is not
for his harassment. How the Magistrate has
satisfied himself in this regard must be
reflected from the proceedings conducted
by him. Therefore, a conscious decision has
to be taken. Specific order is required to be
passed regarding postponement of issuing
process and for initiation of inquiry either
by himself or ordering investigation, as the
case may be. If the Magistrate decides to
inquire himself he should put necessary
questions with the witnesses and also to the
complainant, like, identity of accused,
acquaintance of complainant and witness
with the accused, relationship in between
accused and complainant and in between
complainant and witnesses etc. If, the
Magistrate decides to order investigation
then purpose of investigation and person to
whom investigation is entrusted should be
clearly mentioned by giving a reasonable
time to complete the investigation.

20. In Smt. Parvinder Kaur and
another (Supra) this court has held as
under in paragraph nos. 5, 6 and 7 :-

"5. To fulfil the intention of the statue,
a Magistrate before issuing process after
invoking this provision should satisfy
himself that the complaint filed against the
person residing outside the jurisdiction of
the court is not for his harassment. How the
magistrate has satisfied himself in this
regard
must
be
reflected
from
the
proceedings conducted by him. Therefore,
a conscious decision has to be taken.
Specific order is required to be passed
regarding postponement of issuing process
and for initiation of enquiry either by
himself or ordering investigation, as the
case may be. If the Magistrate decides to
enquire himself he should put necessary
questions with the witnesses and also to the
complainant, like; identity of accused,
acquaintance of complainant and witness
with the accused, relationship in between
accused and complainant and in between
complaint and witnesses etc.

6. If, however, the Magistrate decides
to order investigation then purpose of
investigation
and
person
to
whom
investigation is entrusted should be clearly
mentioned by giving a reasonable time to
1 All. Aman Pandey Vs. State of U.P. & Anr.
1063
complete the investigation. It is also
important to note that this investigation
under section 202 Cr.P.C. is different from
the investigation under section 156 Cr.P.C.
Therefore, the Magistrate before ordering
investigation
must
ensure
that
the
investigating officer or any other person
shall not be allowed to arrest the accused
in such investigation. The Magistrate
should also keep in mind the proviso added
to sub-section(1) of section 202, which
deals with cases wherein investigation
could not be directed.

7. In the present case, it is not
reflected from the proceedings that the
Magistrate has exercised his jurisdiction
after
complying
with
the
mandatory
provisions of Section 202 Cr.P.C. To the
contrary, the Magistrate has summoned
accused person, as is evident from the
impugned
summoning
order
without
complying with the mandatory provisions
of Section 202 Cr.P.C."

21. The aforesaid judgments in Smt.
Parvinder Kaur and another (supra),
Arvind Kumar Chaurasiya (supra) and
Mohd. Illiyas (supra) have considered
the Apex Court judgment in National
Bank of Oman (Supra), which was a
case where any inquiry as mandated by
section 202 Cr.P.C. was not held by the
Magistrate, as the amended section 202
Cr.P.C. was not noticed by the concerned
Magistrate. In National Bank of Oman
(supra), the Magistrate had not examined
the witnesses. The process was issued on
perusal of the complaint, the statement of
the complainant and the documents
attached to the complaint. A perusal of
the judgments of this Court, aforesaid,
shows that in those cases the Magistrate
had not exercised the jurisdiction after
complying with the mandatory provisions
of section 202 Cr.P.C. In the present case
two witnesses were examined under
sections 202 Cr.P.C. Therefore, the
present case is not a case of no inquiry or
no investigation as mandated by section
202 Cr.P.C.

22. The cases of Smt. Parvinder
Kaur and another (supra), Arvind
Kumar Chaurasiya (supra) and Mohd.
Illiyas (supra) have also not taken into
consideration the Apex Court judgment in
Vijay Dhanuka etc. (Supra) which clearly
lays down that in the inquiry envisaged
under section 202 Cr.P.C. the witnesses
are examined. No specific mode or
manner of inquiry is provided by section
202 of the Code.

23. It may be open for the
Magistrate to put necessary questions to
the witnesses and also to the complainant
like identity of accused, acquaintance of
complainant and witnesses with the
accused, their relationship, etc, in holding
inquiry under section 202 Cr.P.C., but if
he does not hold inquiry in that particular
manner it would not vitiate the order of
summoning, in as much as the object of
the inquiry is only for the purpose of
deciding whether or not there is a
sufficient ground for proceeding against
the accused and at this stage the
Magistrate is not holding any trial. He is
holding an "inquiry" which means an
inquiry other than trial. However, the
order of the Magistrate must indicate that
he has made inquiry and on such inquiry
he is prima facie satisfied that a case for
summoning is made out.

24. In view of the above, the cases of
Smt. Parvinder Kaur and another (Supra),
Arvind Kumar Chaurasiya (Supra) and
Mohd. Illiyas (supra) are of no help to the
applicants.
1064 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In the present case the statements
of the witnesses were recorded under
section 202 Cr.P.C. It is also admitted to
the applicants vide para no. 16 of the
affidavit that the statements of PW-1
Kanhaiyalal and PW-2 Masallah were
recorded under section 202 Cr.P.C. by the
court concerned. The statement of the
complainant was recorded on 02.04.2019
and the statement of the witnesses were
recorded on 07.06.2019 & 11.07.2019.
Therefore, there is also time gap in
recording the statements of the complainant
and the witnesses, which shows that after
recording the statement of the complainant,
issuance of process was postponed and the
enquiry was held under Section 202 Cr.P.C.
before passing the summoning order.

26. This Court is therefore, not
convinced with the submission of learned
counsel for the applicants that any inquiry
as contemplated by section 202 Cr.P.C. was
not held by the Magistrate.

27. At the stage of summoning, the
Magistrate is required to apply his judicial
mind only with a view to find out whether a
prima facie case has been made out for
summoning the accused persons. At this
stage, the Magistrate is not required to
consider the defence version or materials or
arguments nor is he required to evaluate the
merits of the materials or evidence of the
complainant, as has been laid down by the
Hon'ble Supreme Court in the cases of R.R.
Kapur Vs. State of Panjab, reported in
AIR 1960 SC 866 and State of Haryana
Vs. Bhajan Lal, reported in 1992 SCC
426. It is also settled that the power under
Section 482 Cr.P.C. is exercised by the
High
Court
only
in
exceptional
circumstances and only when a prima facie
case is not made out against the accused
persons.

28. In Sonu Gupta versus Deepak
Gupta reported in (2015) 3 SCC 424, the
Hon'ble Supreme Court has held as under
in paragraph no. 8:-

"8. ...At the stage of cognizance and
summoning the Magistrate is required to
apply his judicial mind only with a view to
take cognizance of the offence or in other
words to find out whether a prima facie
case is made out for summoning the
accused persons. At this stage, the learned
Magistrate is not required to consider the
defence version or materials or arguments
nor is he required to evaluate the merits of
the
materials
or
evidence
of
the
complainant, because the Magistrate must
not undertake the exercise to find out at
this stage whether the materials would lead
to conviction or not."

29. The submission of the learned
counsel for the applicant that the complaint
case is highly improbable, is in the nature
of the defence of the applicant which being
disputed question of fact and requiring
evidence cannot be gone into at this stage
of summoning by this Court in the exercise
of jurisdiction under Section 482 Cr.P.C. In
Harshendra Kumar versus Rebatilata
Koley & others (2011) 3 SCC 351, the
Hon'ble Supreme Court has held that it is
fairly well settled that while exercising
inherent jurisdiction under Section 482
Cr.P.C. or revisional jurisdiction under
Section 397 of the Code in a case where
complaint is sought to be quashed, it is not
proper for the High Court to consider the
defence of the accused or embark upon an
enquiry in respect of the accusations.

30. Any contradiction in the statement
of the complainant and the witness, could
not be brought to the notice of this Court by
the learned counsel for the applicant so as
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
1065
to establish that on the material before the
Magistrate any case for summoning of the
applicant was not made out prima facie.

31. This Court finds that the
revisional
court
has
set
aside
the
summoning order dated 08.08.2019 passed
by the Magistrate under Sections 504 and
506 I.P.C., as it found that there was
sufficient material available on record to
show that the accused had cheated the
complainant and the trial court had
committed illegality in only summoning the
accused under Section 504 and 506 I.P.C.
and in not summoning the accused under
Section 420 I.P.C. also. The learned
revisional
court
directed
the
learned
Magistrate to pass summoning order afresh
in accordance with the directions given in
the revisional judgments.

32. In view of this judgment, as
discussed above this Court finds that the
direction given by the revisional court to
pass fresh orders cannot be faulted with in
as much as the summoning order dated
08.08.2019 passed under Sections 504 and
506 I.P.C. could not be supplemented by
the Magistrate but he was required to pass
fresh orders under all the applicable
sections. The summoning order to the
extent the accused was summoned under
Sections 504 & 506 I.P.C. has not been set
aside by the revisional court on merit. This
Court also finds that the said order dated
8.08.2019 as challenged in the present
petition does not suffer from any illegality
to the extent of summoning of the accused
under Sections 504 and 506 I.P.C. on the
grounds of challenge made by the learned
counsel for the applicant.

33. However, as the order dated
08.08.2019 has already been set aside with
direction to pass fresh orders, prayer of the
applicant to set aside the order dated
08.08.2019 cannot be granted.