# Hemant Tiwari & Ors v. State of U.P. & Anr

- **Citation:** (2022) 1 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-23
- **Case number:** Application U/S 482/378/407 No. 5691 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-tiwari-ors-v-state-of-u-p-anr-47655
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - section 202 - Postponement of
issue of process - Section 2(g) - Inquiry -
no specific mode or manner of inquiry
provided u/s 202 Cr.P.C. of the Code -
Apex Court in the inquiry mandated u/s
202 Cr.P.C. - would mean examination of
the complainant and examination of the
witnesses. (Para - 11)

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 202 - in case
the summons are issued against the
accused persons who are residing outside
the territorial limits a prior inquiry by the
concerned Magistrate or investigation by
the police should be made before issuing
summons.(Para -4 ,8)

Complaint filed by opposite party no. 2 -
summoned all petitioners - residing outside the
territory
of
the
court
from
where
the
summoning order has been issued - contention -
no inquiry was conducted by the Magistrate
against the persons who were residing outside
the territorial limits. (Para - 4,7)

HELD:-Summoning order (impugned) has been
issued after examination of the complainant u/s
200 and examination of witnesses u/s 202
Cr.P.C. Therefore, there is no infirmity or
illegality in the impugned order. Sections for
which the petitioners have been summoned i.e.
500 and 501 IPC are triable by the sessions,
therefore, the prior direction for investigation
could have not been issued by the Magistrate in
view of the first proviso of section 202(1)
Cr.P.C. .(Para - 13)

Petition dismissed . (E-7)

List of Cases cited:-

## Text

1 All. Hemant Tiwari & Ors. Vs. State of U.P. & Anr.
257
re: Satender Kumar Antil Vs. Central Bureau
of Investigation & Anr, Petition(s) for Special
Leave to Appeal (Crl.) No(s).5191/2021 as well
as in the light of the judgment dated 02.09.2021
in re; Aman Preet Singh vs. C.B.I. through
Director, Criminal Appeal No.929 of 2021
(arising out of SLP (Crl.) No.5234/2021),
wherein the Apex Court has considered the
decision of Delhi High Court in re; Court on
its own Motion vs. Central Bureau of
Investigation (2004) 72 DRJ 629, wherein the
guideline was formulated that if any accused
person
has
not
been
arrested
during
investigation and has cooperated with the
investigation, there is no need to arrest him after
filing charge sheet, particularly, if the nature of
offences is not so serious. In the aforesaid
judgment, the Apex Court has considered its
own judgment in re; Siddharth vs. The State
of Uttar Pradesh & Anr., Criminal Appeal
No.838 of 2021 (arising out of SLP (Crl.)
No.5442/2021), whereby the Apex Court
considering the observation of the well
celebrated judgment in re; Joginder Kumar vs.
State of U.P. & Ors, (1994) 4 SCC 260, has
observed that the arrest is not mandatory in all
cases and if the accused person is cooperating
with investigation, there is no need to arrest.

11. Till the disposal of such application of
the petitioners, the non-bailable warrant shall not
be executed against them but if the petitioners do
not file application within four weeks, as
aforesaid, the benefit of this order may not be
given to them and the learned court below would
be at liberty to take appropriate coercive steps, as
per law.

12. Before parting with the matter, I must
observe that the learned court below must take
care of relevant facts before issuing the bailable
warrants,
non-bailable
warrants
and
proclamation under Section 82 Cr.P.C.

13. The Hon'ble Apex Court in re:
Inder Mohan Goswami (supra) has clearly
observed that issuance of non-bailable
warrants involves interference with personal
liberty. Arrest and imprisonment means
deprivation of the most precious right of an
individual. Therefore, the courts have to be
extremely careful before issuing non-bailable
warrants. Further, in the order where the
bailable/
non-bailable
warrant
or
proclamation under Section 82 Cr.P.C. is
issued, the court must indicate that despite the
service of summons or bailable warrant or
non-bailable warrant the accused has not
appeared. In the absence of such indication
the coercive orders, as said above, would be
treated as if they failed the test of statutory
prescriptions prescribed under Sections 64 &
65 of the Cr.P.C.

14. Accordingly, the instant petition is
disposed of finally in terms of the aforesaid
order making it clear that I have not
decided the validity of the charge-sheet.
Therefore, the petitioners would be at
liberty to avail appropriate remedy before
appropriate court of law at various stages.
----------
(2022)01ILR A257
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 5691 of 2021

Hemant Tiwari & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rajesh Kumar, Rohit Kumar Tripathi
258 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - section 202 - Postponement of
issue of process - Section 2(g) - Inquiry -
no specific mode or manner of inquiry
provided u/s 202 Cr.P.C. of the Code -
Apex Court in the inquiry mandated u/s
202 Cr.P.C. - would mean examination of
the complainant and examination of the
witnesses. (Para - 11)

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 202 - in case
the summons are issued against the
accused persons who are residing outside
the territorial limits a prior inquiry by the
concerned Magistrate or investigation by
the police should be made before issuing
summons.(Para -4 ,8)

Complaint filed by opposite party no. 2 -
summoned all petitioners - residing outside the
territory
of
the
court
from
where
the
summoning order has been issued - contention -
no inquiry was conducted by the Magistrate
against the persons who were residing outside
the territorial limits. (Para - 4,7)

HELD:-Summoning order (impugned) has been
issued after examination of the complainant u/s
200 and examination of witnesses u/s 202
Cr.P.C. Therefore, there is no infirmity or
illegality in the impugned order. Sections for
which the petitioners have been summoned i.e.
500 and 501 IPC are triable by the sessions,
therefore, the prior direction for investigation
could have not been issued by the Magistrate in
view of the first proviso of section 202(1)
Cr.P.C. .(Para - 13)

Petition dismissed . (E-7)

List of Cases cited:-

1. N.B.O. Vs Barakara Abdul Aziz & anr. ,
(2013) 2 SCC 488

2. Vijay Dhanuka ors. Vs Najima Mamtaj & ors.
, (2014) 14 SCC 638
3. Uday Shankar Awasthi Vs St. of U.P. , (2013)
2 SCC 435

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Rohit Kumar Tripathi
and Sri Rajesh Kumar, learned counsel for
the petitioners and learned AGA.

2. In view of the proposed order
notice to opposite party no. 2 is dispensed
with.

3. By means of this petition the
petitioners have prayed for quashing the
summoning
order
dated
31.5.2019
(Annexure no. 1) and N.B.W. order dated
1.11.2021 passed by the C.J.M., Lucknow
summoning the petitioners in Complaint
Case No. 5637/2018 u/s 500,501 IPC, P.S.
Gautampalli, District Lucknow as well as
entire criminal proceedings of the aforesaid
criminal case.

4. The contention of learned counsel
for the petitioner is that the petitioner nos. 2
and 3 are the resident of New Delhi and
Bangalore respectively. On the complaint
filed by opposite party no. 2 the learned
C.J.M., Lucknow has summoned all the
petitioners vide impugned order dated
31.5.2019. As per learned counsel for the
petitioner while summoning the petitioners
no. 2 and 3 who are residing outside the
territory of the court from where the
summoning order has been issued, the
learned
court-below
has
committed
manifest error of law inasmuch as section
202 Cr.P.C. clearly mandates that in case
any accused person is residing at a place
beyond the area in which he exercises his
jurisdiction, shall postpone the issue of
process against the accused and either
enquire into the case himself or direct the
1 All. Hemant Tiwari & Ors. Vs. State of U.P. & Anr.
259
investigation to be made by the police
officer or by such other person as he thinks
fit, for the purpose of deciding whether or
not
there
is
sufficient
ground
for
proceedings. For the convenience section
202 Cr.P.C. is being reproduced hereinbelow:

"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."

5. Learned counsel for the petitioner
has submitted that the aforesaid mandatory
condition has been inserted in section 202
Cr.P.C. by Act no. 25 of 2002, w.e.f
23.6.2006.
Therefore,
before
issuing
summons, particularly to petitioner nos. 2
and 3 the Magistrate should have enquired
into the case himself or should have
directed for investigation to be made by the
police officer. Since such mandatory
exercise
has
been
avoided
by
the
Magistrate while issuing the summoning
orders against the petitioner nos. 2 and 3,
the impugned order dated 31.5.2019
vitiates and the same is liable to be quashed
at the threshold.

6. In support of his aforesaid
contention the learned counsel for the
petitioner has drawn attention of this Court
towards National Bank of Oman vs.
Barakara Abdul Aziz and another (2013)
2 Supreme Court Cases 488 and Vijay
Dhanuka and others vs. Najima Mamtaj
and others (2014) 14 Supreme Court
Cases 638.

7. Learned counsel for the petitioner
has submitted that in the case of National
Bank of Oman (supra) the Apex Court
instead of quashing the complaint remitted
the matter back to the Magistrate concerned
to pass fresh order under the mandatory
condition of section 202 Cr.P.C. inasmuch
as no inquiry was conducted by the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate against the persons who were
residing outside the territorial limits.

8. Learned counsel for the petitioner
has submitted that in re: Vijay Dhanuka
(supra) Apex Court has considered one
earlier judgment of Apex Court i.e. Uday
Shankar Awasthi vs. State of U.P. (2013)
2 SCC 435 whereby the Apex Court has
interpreted section 202 Cr.P.C. and it has
been clearly directed by the Apex Court
that in case the summons are issued against
the accused persons who are residing
outside the territorial limits a prior inquiry
by
the
concerned
Magistrate
or
investigation by the police should be made
before issuing summons. Since in the
present case no such mandatory exercise
has been followed, therefore, the impugned
order dated 31.5.2019 vitiates and is liable
to be set aside.

9. Per contra, Sri Anirudh Kumar
Singh, learned AGA has submitted that since
the learned Magistrate has issued summons
against
the
petitioners
including
the
petitioners no. 2 and 3 who resides outside
the territorial limits after making compliance
of section 200 and 202 Cr.P.C., therefore,
there is no infirmity in the impugned order.
He has further submitted that the first proviso
of section 202 Cr.P.C. clearly mandates that
where it appears to the Magistrate that the
complaint is triable exclusively by the Court
of
sessions,
no
such
direction
for
investigation shall be made by the Magistrate.
As per Sri Singh in the present case the
present petitioners have been summoned for
section 500 and 501 IPC and section 500 IPC
is triable by sessions court and section 501(a)
IPC is also triable by the sessions, therefore,
no such direction for investigation could have
been issued by the Magistrate. Hence, in view
of the above there is no infirmity or illegality
in the order dated 31.5.2019.

10. Having heard learned counsel for
the parties and having perused the material
available on record, I find that the Apex
Court in re: Vijay Dhanuka (supra) has set
at rest the controversy in question vide para
13 to 16 thereof. For the convenience paras
no. 13 to 16 are being reproduced herein
below :

"13. In view of the decision of this
Court in the case of Udai Shankar Awasthi
v. State of Uttar Pradesh, (2013) 2 SCC
435, 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:

"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 mandatory to postpone
the issue of process 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
1 All. Hemant Tiwari & Ors. Vs. State of U.P. & Anr.
261
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

It is evident from the aforesaid
provision, every inquiry other than a trial
conducted by the Magistrate or 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 202 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. In the result, we do
not find any merit in the appeals and the
same are dismissed accordingly."

11. In para 13 the Apex Court has
considered the earlier dictum of Apex Court
in re: Uday Shankar Awasthi (supra)
wherein the amended section 202 Cr.P.C. has
been interpreted, therefore, the Apex Court
has taken cognizance of the amended portion
of section 202 Cr.P.C. Vide para 14 the Apex
Court has interpreted the term 'Inquiry' as
defined u/s 2(g) of the Code, noticing the fact
that no specific mode or manner of inquiry is
provided u/s 202 Cr.P.C. of the Code,
therefore, as per the Apex Court in the
inquiry mandated u/s 202 Cr.P.C. would
mean the examination of the complainant and
examination of the witnesses. After the
aforesaid examination, obviously the same
would have been made on the solemn
affirmation, that exercise would be sufficient
to understand that, that is the inquiry as
mandated u/s 202 Cr.P.C.

12. The Apex Court in para 15 and 16 of
the aforesaid judgment has clearly observed that
the Magistrate has examined the complaint on
solemn affirmation of the two witnesses and
only thereafter he had directed for issuance of
process, therefore, there is no error in such
order.

13. In the present case the impugned
order dated 31.5.2019 clearly reveals that
such
order
has
been
issued
after
examination of the complainant u/s 200 and
examination of witnesses namely Nitin
Srivastava, Sushil Awasthi, Rajat Kishor
Mishra and Haseeb Siddiqui u/s 202
Cr.P.C. Therefore, there is no infirmity or
illegality in the impugned order dated
31.5.2019. Besides, the sections for which
the petitioners have been summoned i.e.
500 and 501 IPC are triable by the sessions,
therefore,
the
prior
direction
for
investigation could have not been issued by
the Magistrate in view of the first proviso
of section 202(1) Cr.P.C.

14. Accordingly, I dismiss the present
petition being devoid of merits. However, it
is provided that if the petitioner appears
before the learned court below i.e. C.J.M.,
Lucknow in compliance of order dated
31.5.2019 by filing appropriate application,
the same shall be heard and decided
expeditiously as per law.
262 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)01ILR A262
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2021

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 18671 of 2021

Dr. Abhai Ranjan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Atharva Dixit, Sri Syed Imran Ibrahim,
Sri Manish Tiwary (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Prevention of Corruption Act,
1988 - Section 7/13(1)(d) r/w Section
13(2) - Section 19 - Previous sanction
necessary for prosecution - difference
between absence of sanction and validity
of sanction - issue regarding absence of
sanction can be raised at the inception by
the aggrieved person - where the sanction
order exists, the issue regarding its
validity has to be raised only during
course of trial - a mere error, omission or
irregularity in sanction is not considered
to be fatal unless it has resulted in the
''failure of justice' or has been occasioned
thereby.(Para - 26,27)

(B) Criminal Law - The Prevention of
Corruption Act, 1988 - Section 19(3) -
specific embargo for granting any stay
order on the ground of any error, omission
or irregularity in the sanction granted by
the authority, unless it has resulted into
failure of justice - Section 4(4) - Act has
given a time bound period to conclude the
trial of the case within a period of two
years (four years maximum).(Para -32,33)
Quashing of summoning order , impugned
charge-sheet and entire proceeding - trap
organized against applicant (Mining Inspector) -
demanded a bribe - to issue challan to the
complainant - enable him to complete his work -
trap successful - F.I.R. lodged by AntiCorruption - applicant caught red handed -
Prevention of Corruption Act initiated against
him - statements u/s 161 Cr.P.C. of various
witnesses and collecting all the relevant
material/ documents - charge-sheet - report u/s
173(2) Cr.P.C. filed without any requisite
sanction
and
pending
before
the
State
Government - cognizance taken by magistrate
.(Para - 1 to 4)

HELD:-Applicant failed to bring on record even
a single instance regarding "failure of justice".
Not a case of absence of sanction, but in this
case sanction has been granted. Authenticity or
validity of this sanction could be adjudged either
by the Division Bench in writ petition or at the
stage of the trial, but there could not be any
good reason to stall the proceedings of the case
or vitiate the cognizance order in absence of
any material on record which may result into
"failure of justice" to the applicant . Provisions
of Section 4 (4) of the Prevention of Corruption
Act has to be kept in mind and suitable
endeavour has to be made by the trial court to
conclude the trial within the time specified
therein.(Para - 33,35)

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

List of Cases cited:-

1. Nanjappa Vs St. of Karn., AIR 2015 SC 3060

2. Vijay Kumar Janjua Vs St. of Punj. & anr. ,
CWP No.10055 of 2010 decided on 24.01.2014

3. Dinesh Kumar Vs Chairman, Airport Authority
of India & anr., (2011) 4 SCC 402

4. Prakash Singh Badal & anr. Vs St. of Punj. &
ors., (2007) 1 SCC

5. C.B.I. Vs Ashok Kumar Aggarwal, (2015) 1
SCC (Cri) 344

6. Town Investments Ltd. Vs Deptt. of
Environment, (1977) 1 All ER 813.