# Amit Iqbal Srivastava v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-30
- **Case number:** Application U/S 482 No. 1294 of 2022
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-iqbal-srivastava-v-state-of-u-p-anr-47754
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 406, 504, 506 - proceedings
under Sections 200 is qua an inquiry
proceeding under Section 202 (1) - if a
Magistrate has proceeded or inquired
during the investigation under Sections
200
and
202
of
Cr.P.C.,
separate
proceeding for inquiry or investigation is
not required. (Para -27)

Application
under
Section
156(3)
Cr.P.C.
instituted - treated as complaint case -
statement recorded under Sections 200 and 202
of Cr.P.C. - applicant resides outside territorial
jurisdiction of Magistrate - no inquiry done by
Magistrate prior to issuance of process - even
Magistrate did not direct police officer for
investigation in the matter - Issue - whether, in
view of provisions contained in Section 202(1)
of Cr.P.C. , inquiry by Magistrate himself or
direction
for
investigation
is
mandatory
requirement. (Para - 3,23)

HELD:-Neither Magistrate in proceeding under
Sections 200 and 202 Cr.P.C. tried to inquire
regarding issue of territorial jurisdiction nor has
separately done any inquiry or directed for any
investigation. If a thing is to be done in a
manner prescribed in a statue, then that has to
be done in the same manner not otherwise.
Mandate of provision of Section 202 (1) of
Cr.P.C. violated. Impugned order not tenable.
(Para -27)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

488 INDIAN LAW REPORTS ALLAHABAD SERIES
Police
Station
Husainganj,
District
Lucknow, pending in the court of Ist
Additional Chief Judicial Magistrate, Court
No.25,
Lucknow
in
respect
of
the
petitioners, are hereby quashed.
----------
(2022) 10 ILRA 488
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.03.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 1294 of 2022

Amit Iqbal Srivastava ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri S.K. Mishra Nagraha, Sri Vashu Deo
Mishra

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 406, 504, 506 - proceedings
under Sections 200 is qua an inquiry
proceeding under Section 202 (1) - if a
Magistrate has proceeded or inquired
during the investigation under Sections
200
and
202
of
Cr.P.C.,
separate
proceeding for inquiry or investigation is
not required. (Para -27)

Application
under
Section
156(3)
Cr.P.C.
instituted - treated as complaint case -
statement recorded under Sections 200 and 202
of Cr.P.C. - applicant resides outside territorial
jurisdiction of Magistrate - no inquiry done by
Magistrate prior to issuance of process - even
Magistrate did not direct police officer for
investigation in the matter - Issue - whether, in
view of provisions contained in Section 202(1)
of Cr.P.C. , inquiry by Magistrate himself or
direction
for
investigation
is
mandatory
requirement. (Para - 3,23)

HELD:-Neither Magistrate in proceeding under
Sections 200 and 202 Cr.P.C. tried to inquire
regarding issue of territorial jurisdiction nor has
separately done any inquiry or directed for any
investigation. If a thing is to be done in a
manner prescribed in a statue, then that has to
be done in the same manner not otherwise.
Mandate of provision of Section 202 (1) of
Cr.P.C. violated. Impugned order not tenable.
(Para -27)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-
1. National Bank of Oman Vs Barakara Abdul
Aziz, (2013) 2 SCC 488

2. Pawan Kumar Yadav & other Vs St. of U.P. &
ors. , 2014 (1) JIC 221 (All)(LB)

3. Pepsi Foods Ltd. & anr. Vs Special Judicial
Magistrate & ors. , 1998 SCC (Crl) 1400

4. Udai Shankar Awasthi Vs St. of U.P.
Manu/SC/0018/2013: 2013 (2) SCC 435

5. Vijnay Dhanuka Vs Najima Mamtaz ,
MANU/SC/0251/2014

6. Manish Kumar Yadav & ors Vs St. of U.P. &
ors. , Application u/s 482 No. 1262 of 2020

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Vashu Deo Mishra,
learned counsel for the applicant, Sri
Anirudh Kumar Singh, learned AGA for the
State and perused the record.

2. The instant application under
Section 482 Cr.P.C has been instituted, for
quashing of the entire proceedings of
complaint Case No. 07 of 2021, under
Sections 406, 504, 506 IPC, Police Station-
Manikpur, District Pratapgarh as well as the
10 All. Amit Iqbal Srivastava Vs. State of U.P. & Anr.
489
summoning order dated 28.10.2021 passed
by Additional Chief Judicial Magistrate,
Kunda, District Pratapgarh.

3. Factual matrix of the case is that
the complainant who is a managing partner
of Anuna Education Pvt. Ltd, had entered
into an agreement with the complainant's
"NSQF Franchisees". As per the agreement,
the complainant has accorded training to
the students under the scheme namely
Prime Minister Kaushal Vikas Yojana
(P.M.K.V.Y.),
which
runs
under
the
National Skill Development Corporation
(N.S.D.C.). The complainant had served
but the applicant's company did not pay the
full wages as was required to be paid as per
terms and conditions of said scheme. Being
aggrieved, an application under Section
156(3) Cr.P.C. was instituted before the
Magistrate, wherein a date was fixed on
08.12.2020. On 8th February, 2021 it was
treated as complaint case for recording
statement of complainant under Section
200 Cr.P.C.

4. The statement of the complainant
was recorded under Section 200 Cr.P.C. and
the statement of witnesses namely Sanjay
Kumar and Manoj Kumar were also
recorded on 8th March 2021. Allegedly the
present applicant resides
outside the
territorial jurisdiction of the Magistrate
concerned and complainant itself arrayed
the present applicant as respondent by
transcribing the address, which is outside
the territorial jurisdiction of the Magistrate
concerned.

5. The submission of learned counsel
for the applicant is that the mandate of
Section 202 Cr.P.C. is very specific with
regard to the provisions that as soon, a
complaint comes before a Magistrate, he
will enquire or pass an order for an
investigation, if the accused is residing
outside the territorial jurisdiction of the
Court concerned.

6. Provisions of Section 202 Cr.P.C.
is read 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
to produce all his witnesses and examine
them on oath.
490 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

7. Learned counsel for the applicant
has drawn attention towards an amendment
named as Code of Criminal Procedure
(Amendment) Act, 2005 (Central Act 25 of
2005), which came into force w.e.f. 23rd
June 2006. He submits that in fact the
intent of legislature is to put safeguard to
proposed accused, who is not residing in
territorial
jurisdiction
of
the
Court
concerned.
While
the
enactment/amendment,
the
legislature
found that false complaints are being filed
against the persons residing at far off place,
simply with a view to harass them and in
order to see that innocent persons are not
harassed by unscrupulous and unwanted
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 for the 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 prospective
accused.

8. Adding his argument, the learned
counsel for the applicant further submits
that in fact the Hon'ble Apex Court in the
case of National Bank of Oman vs.
Barakara Abdul Aziz, (2013) 2 SCC 488,
has very specifically held that the outside
territorial
jurisdiction,
a
Magistrate
receiving
complaint,
follow
the
due
procedure provided under Section 202 of
Cr.P.C. (Act 2005). Extract of the judgment
reads as under:

"and shall, in a case where the
accused is residing at a place beyond the
area in which he exercises jurisdiction"

Further the note on clause for
abovementioned amendment was also taken
into consideration which is read as follows;

"False
complaints
are
filed
against persons residing at far off places
simply to harass them. In order to see that
the innocent persons are not harassed by
unscrupulous persons, this clause seeks to
amend sub-sections (1) of Section 202 to
make it obligatory upon the Magistrate that
before summoning the accused residing
beyond his jurisdiction he shall enquire in
to 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 proceedings against the accused"

9. Further contention of learned
counsel for the applicant is that Hon'ble
Apex Court, after considering abovesaid
amendment, held that since the accused
was residing outside the jurisdiction of
CJM Ambedkar Nagar but the Magistrate
did
not
acknowledge
the
provisions
aforesaid and passed the orders and thus the
High Court has rightly quashed the
proceeding of complaint as the Magistrate
without considering and taking into account
the aforesaid amended portion of the Act
had proceeded in the matter. He added that
the case of the present applicant is squarely
covered with the ratio of the above
judgment.

10. Learned counsel appearing for the
applicant further placed reliance upon the
10 All. Amit Iqbal Srivastava Vs. State of U.P. & Anr.
491
case of Pawan Kumar Yadav and other
vs State of U.P. and other reported in
2014 (1) JIC 221 (All)(LB), wherein it has
been settled that if Magistrate decides to
order for investigation, the person to
whom, investigation is entrusted, should be
clearly mentioned by giving a reasonable
time to complete the investigation.

11. He submits that from perusal of
the aforesaid finding, it is clear from the
mandate of Section 202(1) Cr.P.C. after
amending of the Cr.P.C., the Magistrate,
prior to issuance of any process, has to look
into that whether respondent and the
complainant are residing in his territorial
jurisdiction or not.

12. Further placing reliance on, the
case of Pepsi Foods Limited and another
vs. Special Judicial Magistrate and
others reported in 1998 SCC (Crl) 1400
has drawn attention towards paragraph 28,
which is extracted as under;

"28. Summoning of an accused in
a criminal case is a serious matter.
Criminal law cannot be set into motion as a
matter of course. it is not that the
complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the magistrate
summoning the accused must reflect that he
has applied his mind to the facts of the case
and the law applicable thereto. He has to
examine the nature of allegations made in
the complaint and the evidence both oral
and documentary in support thereof and
would that be sufficient for the complainant
to succeed in bringing charge home to the
accused. It is not that the Magistrate is a
silent spectator at the time of recording of
preliminary evidence before summoning of
the accused. Magistrate has to carefully
scrutinise the evidence brought on record
and may even himself put questions to the
complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine
if any offence is prima facie committed by
all or any of the accused."

13. Referring the abovesaid judgment,
he added that ratio, which has been upheld
in para 28 of the judgment is to the effect
that the criminal cases are always having
serious far-reaching consequences and as a
matter of course, no criminal proceeding
can be set into motion. Summoning of the
accused must reflect in the order itself and
the Magistrate has to be careful in
consideration
and
may
question
the
complainant and witness to alleged answer
to find out the fact.

14. He further contended that there is
nothing on record, which reflects that the
Magistrate has considered the fact with
regard to the territorial jurisdiction. He next
submits that since it is up to the Magistrate,
while taking the note of the mandate of
Section 202 (1) Cr.P.C., to inquire or to
direct the investigation and to reach out to
the fact that the respondent of the said
complaint resides outside the territorial
jurisdiction or not.

15. Concluding his argument he
submits that from bare perusal of the order
dated 28.10.2021 and the statements of the
complainant as well as the witnesses,
recorded by the learned Magistrate, it
reveals that while coming to the conclusion
for issuance of process, learned Magistrate
shall inquire into the case himself or direct
for any investigation to be made by police
officers and thus, he has violated the
mandate of provision of Section 202(1)
Cr.P.C. and, as such, the order dated
492 INDIAN LAW REPORTS ALLAHABAD SERIES
28.10.2021 is not sustainable in the eyes of
law.

16. On the other hand, learned AGA
vehemently opposed the contention and
prayer made aforesaid and submits that in
fact the process under Section 202 Cr.P.C.
is itself an inquiry, as has been held by the
Apex Court in several decisions. In support
of his contention, he has placed reliance on
the decision in the case of Udai Shankar
Awasthi
vs
State
of
U.P.
Manu/SC/0018/2013: 2013 (2) SCC 435,
the ratio thereof is extracted as follows:

"It is clear that if a prospective
accused resides outside the territorial
jurisdiction
of
the
Magistrate,
the
compliance of provisions of Section 202 (1)
Cr.P.C. is mandatory before issuance of any
process against the prospective accused
persons, however, as stated earlier, the
examination of witnesses by Magistrate
under Section 202 Cr.P.C. also falls within
the realm of such inquiry."

17. He submits that in fact it has been
held that the proceeding under Section 202
Cr.P.C. is an inquiry as per the definition
held by the Hon'ble Apex Court. He also
stated that in fact there is no separate
inquiry required outside the purview under
Section 202 Cr.P.C. He submits that there is
no specific inquiry required under any
provision of the Cr.P.C., so far as the
mandate of Section 202 is concerned.

18. Learned counsel for the applicant
has also placed reliance upon the decision
rendered in the case of Vijnay Dhanuka vs
Najima
Mamtaz
reported
in
MANU/SC/0251/2014. He mainly placed
reliance on paragraph 11 and 12 of the said
judgment and the same are extracted 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.
The words "and shall, in a case where the
accused is residing at a place beyond the
area in which he exercises his jurisdiction"
was inserted by section 19 of Code of
Criminal
Procedure
(Amendment) Act
(Central Act 25 of 2005) w.e.f. 23rd of
June, 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 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 person as he thinks fit, for finding out
whether or not there was sufficient ground
for proceeding against the accused."

12. The use of the expression
''shall' prima facie makes the inquiry or the
investigation, as the case may be, by the
10 All. Amit Iqbal Srivastava Vs. State of U.P. & Anr.
493
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
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.

19. He submits that while deciding
the aforesaid issue the Hon'ble Apex Court
has quoted the words "and shall" , in case
where the accused residing beyond area
exercise his jurisdiction was inserted vide
amendment in Code of Criminal Procedure
known as (Central Act 25 of 2005) w.e.f.
23rd June 2006. The aforesaid intention of
the legislature was essential to the fact that
no false complaint is filed against the
person to harass them.

20. He further place reliance on the
decision in the case of Manish Kumar
Yadav and ors vs State of U.P. and others
decided in Application u/s 482 No. 1262 of
2020 decided on 14.05.2020 and has drawn
attention of Para 17 of the judgment. The
same is extract as under;

"17.
The
next
question
for
consideration is, what does "enquiry"
means. The expression has been defined in
Section 2(g) of the Code, which means,
every enquiry, other than trial, under this
code by a Magistrate or "Court." It is
evident from the aforesaid provision, every
enquiry other than trial conducted by
Magistrate or a court is an enquiry, no
specific mode or manner is provided viz;
201(1) Cr.P.C. The enquiry envisage U/s 202
Cr.P.C., the witnesses are examined whereas
U/s 200 Cr.P.C. examination of complainant
is necessary with the option of examining of
witnesses present, if any. This exercise by the
Magistrate with the sole objective and
purpose for deciding whether or not there is
sufficient grounds for proceeding against an
accused, is nothing but an enquiry envisage
U/s 202 Cr.P.C. The under-line idea is that,
before exercising power U/s 203/204 Cr.P.C.
it is incumbent upon the Magistrate to took
into the allegations made in the complaint,
statements recorded U/s 200, 202 Cr.P.C.
and if there are witnesses to the incident,
then take the help of those witnesses while
arriving to a particular conclusion. There
cannot be a straight jacketed design or
formula in holding the enquiry."

21. He submits that in fact the
expression "inquiry" has been defined in
Section 2(g) of the Code, which means
every inquiry other than trial, under this
code by a Magistrate or Court. He has
pointed out that no specific mode or manner
of inquiry has been provided, so far as
Sections 200 and 202 are concerned, he
submits that ratio of this judgment is that the
inquiry is sufficient so far as the magistrate
started a proceeding under Section 202 of
the Cr.P.C. Thus submission is that order
impugned with the instant application is not
erroneous or perverse.

22. This Court has taken into
consideration the rival submissions made by
learned counsel representing the respective
parties and have also gone through the
records available.
494 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The issue, which emerges for
consideration and reflect in this case is as to
whether, in view of the provisions contained
in Section 202(1) of Cr.P.C., the inquiry by
the Magistrate himself or the direction for
investigation is mandatory requirement, as
soon as the fact borne out before the
Magistrate concerned is that the accused is
residing outside the territorial jurisdiction of
the Magistrate concerned.

24. From bare perusal of the order
impugned dated 28.10.2021 as well as the
statement recorded under Sections 200 and
202 of Cr.P.C., it emerges that no inquiry has
been done by the Magistrate prior to
issuance of process and even the Magistrate
did not direct the police officer for
investigation in the matter.

25.
 Admittedly,
prior
to
the
amendment in Cr.P.C. i.e., before the year
2005, this provision was not in existence
but, thereafter, vide an amendment of Act
No. 25 of 2005, it has been inserted in
Section
202(1)
of
Cr.P.C.
This
amendment also shows the intent of the
legislature
that
for
avoiding
the
harassment of prospective accused, who
is sitting at far-reaching place the instant
provision has given effect to.

26.

While
examining
all
the
proceedings, which was conducted by the
Magistrate, there seems to be no whisper
regarding the fact that the Magistrate has
inquired or get investigated the matter with
regard to the fact that applicant is residing
outside the territorial jurisdiction or not.

27. Emphasis was also laid that since
the proceedings under Sections 200 is qua
an inquiry proceeding under Section 202 (1)
and therefore if a Magistrate has proceeded
or inquired during the investigation under
Sections 200 and 202 of Cr.P.C., separate
proceeding for inquiry or investigation is not
required. In the instant matter, neither the
Magistrate in the proceeding under Sections
200 and 202 Cr.P.C. tried to inquire
regarding the issue of territorial jurisdiction
nor he has separately done any inquiry or
directed for any investigation.

28. This Court is of the considered
opinion that it is a settled law that if a thing
is to be done in a manner prescribed in a
statue, then that has to be done in the same
manner not otherwise. In the instant matter,
it is, prima facie, a case where the mandate
of provision of Section 202 (1) of Cr.P.C.
has clearly been violated and thus, the order
impugned is not tenable.

29.

Resultantly,
the
instant
application is allowed. The order dated
28.10.2021 passed in Complaint Case No.
07 of 2021 (Shiv Naresh Maurya vs. Amit
Iqbal Srivastava and others), is hereby set
aside.

30. However, the matter is remitted
back to the Magistrate concerned to proceed
afresh and pass the order accordingly.
----------
(2022) 10 ILRA 494
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.09.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 482 No. 6779 of 2022

Rajendra Kumar & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Tanay Hazari