# Mayank Tripathi & Ors v. State of U.P. & Anr

- **Citation:** (2026) 2 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-04
- **Case number:** Application U/S 528 BNSS No. 368 of 2026
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayank-tripathi-ors-v-state-of-u-p-anr-54176
- **Pages:** 20

## Text

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154 INDIAN LAW REPORTS ALLAHABAD SERIES
fact which is best assessed by the authorities constituted under the various government orders and
the assessment of the same does not lie within the domain of this Court while exercising it's powers
under Article 226 of the Constitution of India. Lastly, the petitioners neither have a statutory right
nor a fundamental right to claim police protection and as such, usually the right to claim police
protection cannot be enforced in exercise of power under Article 226 of the Constitution of India.

12. Under the circumstances, we are not inclined to issue any direction to the authorities
concerned for the reasons detailed above.

13. Hence, the writ petition is dismissed. No order as to costs.
----------
(2026) 2 ILRA 154
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.02.2026

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 528 BNSS No. 368 of 2026

Mayank Tripathi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether the Magistrate can take cognizance and issue summons without affording the accused an
opportunity of hearing under Section 223 BNSS, 2023.
Whether postponement of process and inquiry under Section 225 BNSS, 2023 is mandatory when the accused
resides outside the territorial jurisdiction of the Magistrate.
Whether failure to comply with Sections 223 and 225 vitiates the summoning order.?

HEADNOTES
Criminal Law - Code of Criminal Procedure, 1973 - Section - 192, 200, 202, 482, - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Section - 210, 212, 223, 1223(1), 225, 226, 528 - Bharatiya
Nyaya Sanhita, 2023 (BNS) - Section - 85, 115(2), 352, 351(2), - Dowry Prohibition Act, 1961 -
Section - 3, 4: - Application under Section 528 BNSS - seeking quashing of summoning order as well as
criminal proceedings - complaint case - offences under Sections 85, 115(2), 352, 351(2) BNSS and 3/4 D.P.
Act - statements recorded - summons issued - applicants pleaded violation of Section 223 BNSS (no
opportunity of hearing before cognizance) and Section 225 BNSS (no inquiry despite accused residing outside
jurisdiction) - State opposed but conceded legal position - Court finds that opportunity of hearing is
substantive safeguard - inquiry under Section 225 mandatory, failure to comply vitiates order - held -
Magistrate must examine complainant/witnesses, consider dismissal under Section 226, and only thereafter
issue notice and take cognizance - consequently, impugned order unsustainable - order impugned set aside -
application allowed with directions to Magistrate to proceed afresh in accordance with law. (Para - 16, 17, 18)
Application Allowed. (E-11)

CASE LAW CITED
Prateek Agarwal v. State of U.P., 2024 SCC OnLine All 8212
2 All. Mayank Tripathi & Ors. Vs. State of U.P. & Anr.
155
Basanagouda R. Patil v. Shivananda S. Patil, 2024 SCC OnLine Kar 96
Suby Antony v. Judicial First-Class Magistrate, 2025 SCC OnLine Ker 532
Sunil Todi v. State of Gujarat, (2022) 16 SCC 762 : 2021 SCC OnLine SC 1174
Udai Shankar Awasthi v. State of U.P., (2013) 2 SCC 435
Shivjee Singh v. Nagendra Tiwary, (2010) 7 SCC 578
A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500

LIST OF ACTS
Code of Criminal Procedure, 1973 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Bharatiya Nyaya Sanhita,
2023 (BNS) - Dowry Prohibition Act, 1961 -

LIST OF KEYWORDS
Summoning order, Cognizance, Opportunity of hearing, Postponement of process, Inquiry, Dismissal of
complaint, BNSS safeguards, Territorial jurisdiction, Procedural defect.

CASE ARISING FROM
Criminal Case No. 5524 of 2024 - Order dated 04.10.2024 passed by Additional Civil Judge (S.D.)-I/Additional
Chief Judicial Magistrate, Sultanpur.

APPEARANCE OF PARTIES
Counsel for Appellant(s): - Shri Prabhu Ranjan Tripathi,
Counsel for Respondent(s): - AGA.

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Prabhu Ranjan Tripathi, learned counsel for the applicant and learned A.G.A. for
the State.

2. In view of the settled legal position, this Court is not inclined to issue notice to opposite
party no.2.

3. The applicants have instituted instant application under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (here-in-after referred as BNSS) seeking following relief(s):-

"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased
to quash the entire criminal proceeding of Criminal Case No. 5554 of 2024 inclusive of impugned
summoning order dated 04.10.2024 passed by Additional Civil Judge (S.D.)-I/Additional Chief
Judicial Magistrate, Sultanpur, by which the learned Court below has summoned the petitioners in
routine and mechanical manner in relation to offences Under section 85, 115(2), 352, 351 (2)
B.N.S. & 3/4 D. P. Act (Annexure No. 1), in order to meet ends of justice."

4. In view of relevant provisions pointed out, at the very outset it is stated that at this stage the
prayer of the applicant which relates to procedure adopted by learned Additional Civil Judge
(S.D.)-1/Additional Chief Judicial Magistrate, Sultanpur (in short Magistrate) while passing the
order dated 04.10.2024 in Criminal Case No.5524/2024 be considered leaving it open to challenge
the pending criminal proceedings, if cause arises. Prayer acceded.
156 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for the applicants submitted that by means of the impugned order dated
04.10.2024 the applicants have been summoned to face the trial for the offence under section(s) 85,
115(2), 352, 351(2) B.N.S. and 3/4 D.P. Act.

6. It is further submitted that impugned order dated 04.10.2024 is in violation of the statutory
provision i.e. Section 223 of BNSS, according to which before taking cognizance and summoning
the accused the Magistrate/Court concerned is under obligation to issue notice(s) for affording an
opportunity of hearing, and in the instant case only after recording all the statement(s) of the
complainant and the witnesses, the Magistrate has passed the order dated 04.10.2024.

7. Reference has been made to Section 200 Code of Criminal Procedure (in short 'Cr.P.C.')
(now repealed) and Section 223 of BNSS which reads as under:-

Section 200 of Cr.P.C., 1973

Section 223 of BNSS, 2023

Examination of complainant.

A Magistrate taking cognizance of an offence on complaint
shall examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination shall
be reduced to writing and shall be signed by the complainant
and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or trial
to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.

Examination of complainant.

(1) A Magistrate having jurisdiction while taking cognizance of an
offence on complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such examination shall
be reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the
Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the
Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his
official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under section 212:
Provided also that if the Magistrate makes over the case to another
Magistrate under section 212 after examining the complainant and the
witnesses, the latter Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a
public servant for any offence alleged to have been committed in
course of the discharge of his official functions or duties unless-
(a) such public servant is given an opportunity to make assertions as to
the situation that led to the incident so alleged; and
(b) a report containing facts and circumstances of the incident from
the officer superior to such public servant is received.

8. Reliance has also been placed on judgment passed by a co-ordinate Bench of this court
dated 26.11.2024 in Application under Section 482 Cr.P.C. No.10390 of 2024 (2024 SCC
OnLine All 8212) Prateek Agarwal Vs. State of U.P. and Another, judgment of the High Court
of Karnataka passed in the case of Basanagouda R. Patil Vs. Shivananda S. Patil; 2024 SCC
Online Kar 96 and judgment rendered by the High Court of Kerala at Ernakulam in the case of
Suby Antony S/o Late P.D. Antony Vs. Judicial First-Class Magistrate passed in Crl. MC 508
of 2025 on 22.01.2025 (2025 SCC OnLine Ker. 532).

8.1 The relevant paras of Basanagouda (Supra) are being extracted hereinbelow:-
2 All. Mayank Tripathi & Ors. Vs. State of U.P. & Anr.
157

"8. The obfuscation generated in the case at hand is with regard to interpretation of
Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to
the accused, without recording sworn statement of the complainant, or notice should be issued to
the accused after recording the sworn statement, as the mandate of the statute is, while taking
cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no
cognizance of an offence shall be taken by the Magistrate without giving the accused an
opportunity of being heard.

9. To steer clear the obfuscation, it is necessary to notice the language deployed therein.
The Magistrate while taking cognizance of an offence should have with him the statement on oath
of the complainant and if any witnesses are present, their statements. The taking of cognizance
under Section 223 of the BNSS would come after the recording of the sworn statement, at that
juncture a notice is required to be sent to the accused, as the proviso mandates grant of an
opportunity of being heard.

10. Therefore, the procedural drill would be this way:

A complaint is presented before the Magistrate under Section 223 of the BNSS; on
presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine
the complainant on oath, which would be his sworn statement and examine the witnesses present if
any, and the substance of such examination should be reduced into writing. The question of taking
of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue
a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be
issued to the accused at that stage and after hearing the accused, take cognizance and regulate its
procedure thereafter.

11. The proviso indicates that an accused should have an opportunity of being heard.
Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to
the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the
complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit
his case before taking of cognizance. In the considered view of this Court, it is the clear purport of
Section 223 of BNSS 2023."

8.2. The relevant paras of Suby Antony v. Judicial First-Class Magistrate-III, 2025 SCC
OnLine Ker 532, are being extracted hereinbelow:-

4. As the term cognizance is not defined in BNSS, it will be profitable to refer the
following erudite exposition of the Supreme Court in S.K. Sinha, Chief Enforcement Officer v.
Videocon International Ltd. [(2008) 2 SCC 492].

"19. The expression "cognizance" has not been defined in the Code. But the word
(cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It
merely means "become aware of" and when used with reference to a court or a Judge, it connotes
"to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial
notice of an offence with a view to initiating proceedings in respect of such offence said to have
been committed by someone.

20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon
as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken
prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or
condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an
158 INDIAN LAW REPORTS ALLAHABAD SERIES
offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and
circumstances of each case and no rule of universal application can be laid down as to when a
Magistrate can be said to have taken cognizance.

5. Thus, the taking of cognisance of an offence occurs when the Magistrate takes judicial
notice of an offence with a view to initiate proceedings in respect of such offence alleged to have
been committed by the accused. Once cognisance is taken, then the Magistrate has to decide
whether to issue process to the accused or not. Section 225 confers power on the Magistrate to
postpone the issue of process to the accused even after taking cognisance of the offence. At that
stage the Magistrate can either inquire into the case himself, or direct investigation to be made by
a police officer or such other person for the purpose of deciding whether there is sufficient ground
for proceeding. The Apex Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3
SCC 736], dilating on the limited scope of inquiry under Section 202 Cr. P.C., corresponding to
Section 225 of BNSS, held as under;

4. It would thus be clear from the two decisions of this Court that the scope of the inquiry
under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the
ascertainment of the 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 csse 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. In fact it is well settled that in proceedings under Section 202 the
accused has got absolutely no locus standi and is not entitled to be heard on the question whether
the process should be issued against him or not."

The above decision leaves no room for doubt that under the Code the accused had no
locus standi even at the stage where the Magistrate decides whether or not to issue process to the
accused.

6. While on this question, it will also be profitable to refer the decision of the Apex Court
in A.R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500], wherein the procedure to be
followed by the Magistrate upon filing of a complaint is detailed as under;

"When a private complaint is filed, the court has to examine the complainant on oath
save in the cases set out in the proviso to Section 200 CrPC. After examining the complainant on
oath and examining the witnesses present, if any, meaning thereby that the witnesses not present
need not be examined, it would be open to the court to judicially determine whether a case is made
out for issuing process. When it is said that court issues process, it means the court has taken
cognizance of the offence and has decided to initiate the proceeding and as a visible manifestation
of taking cognizance, process is issued which means that the accused is called upon to appear
before the court. This may either take the form of a summons or a warrant, as the case may be. It
may be that after examining the complainant and his witnesses, the court in order to doubly assure
itself may postpone the issue of process, and call upon the complainant to keep his witnesses
present. The other option open to the court is to direct investigation to be made by a police officer.

Upon a complaint being received and the court records the verification, it is open to the
court to apply its mind to the facts disclosed and to judicially determine whether process should or
should not be issued. It is not a condition precedent to the issue of process that the Court of
necessity must hold the inquiry as envisaged by Section 202 or direct investigation as therein
contemplated. The power to take cognizance without holding inquiry or directing investigation is
implicit in Section 202 when it says that the Magistrate may "if he thinks fit, postpone the issue of
2 All. Mayank Tripathi & Ors. Vs. State of U.P. & Anr.
159
process against the accused and either inquire into the case himself or direct an investigation to be
made by a police officer... for the purpose of deciding whether or not there is sufficient ground for
proceeding". Therefore, the matter is left to the judicial discretion of the court whether on
examining the complainant and the witnesses if any as contemplated by Section 200 to issue
process or to postpone the issue of process. This discretion which the court enjoys cannot be
circumscribed or denied by making it mandatory upon the court either to hold the inquiry or direct
investigation. Such an approach would be contrary to the statutory provision. Therefore, there is
no merit in the contention that by entertaining a private complaint, the purpose of speedy trial
would be thwarted or that a pre-process safeguard would be denied."

7. Indeed, a radical change in procedure is brought about by the proviso to Section
223(1) of BNSS. Pertinently, in spite of the proviso to Section 223(1) making it mandatory to
provide opportunity of hearing to the accused before taking cognisance, Section 226 does not
reckon the accused's objection at the stage of taking cognisance as a relevant factor for dismissing
the complaint. Being guided by the precedents on Sections 200 and 202 of the Code and the plain
language of the proviso to Section 223(1) of the BNSS, this Court is of the opinion that, after the
complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and
thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing
should be afforded to the accused. I am also in complete agreement with the following procedural
drill delineated by the High Court of Karnataka in Basanagouda's case (supra);

"9. To steer clear the obfuscation, it is necessary to notice the language deployed therein.
The Magistrate while taking cognizance of an offence should have with him the statement on oath
of the complainant and if any witnesses are present, their statements. The taking of cognizance
under Section 223 of the BNSS would come after the recording of the sworn statement, at that
juncture a notice is required to be sent to the accused, as the proviso mandates grant of an
opportunity of being heard.

10. Therefore, the procedural drill would be this way : A complaint is presented before
the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the
duty of the Magistrate/concerned Court to examine the complainant on oath, which would be his
sworn statement and examine the witnesses present if any, and the substance of such examination
should be reduced into writing. The question of taking of cognizance would not arise at this
juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given
an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and
after hearing the accused, take cognizance and regulate its procedure thereafter."

8.3. In the case of Prateek Agarwal (supra) similar view has been taken by this court.

9. It is also stated that the impugned order dated 14.10.2024 is also in violation of Section 225
BNSS, akin to Section 202 Cr.P.C. (now repealed). As the applicants are resident of DistrictLucknow and complaint was filed at District-Sultanpur and therefore, the Magistrate exercising its
power/jurisdiction, in view of Section 225 BNSS, ought have been postponed the issue of process
for deciding that whether there is sufficient ground for proceeding. The referred provisions are
reproduced hereinunder:-

Section 202 of Cr.P.C., 1973
Section 225 of BNSS,2023
Postponement of issue of process-

Postponement of issue of process.-
160 INDIAN LAW REPORTS ALLAHABAD SERIES
(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.
(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 212, 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 223.
(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 Sanhita on an officer in charge of a police
station except the power to arrest without warrant.

10. It is also stated that after recording statement of the complainant and the witnesses, if any,
the Magistrate before taking cognizance in the matter, shall afford an opportunity of being heard to
the accused. It is for the reason that if upon consideration of the statements and enquiry got
conducted, if any, the Court finds that there is no sufficient ground to proceed, it can dismiss the
complaint under Section 226 BNSS, which is extracted here-in-below:-

"226. Dismissal of complaint- If, after considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the inquiry or investigation (if any) under
section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall
dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Chapter XVII Commencement of Proceedings before Magistrates."

11. Learned A.G.A. for the State, though opposed the prayer but he could not contradict the
legal position. He further submits that the impugned order may be quashed and the matter may be
remitted back, so that the learned Magistrate may proceed in accordance with law and the
respondent No.2 cannot be said to be prejudiced at this juncture.

12. Considered the submissions of learned counsel for the parties and perused the record.

13. The instant case relates to Section 223 BNSS(1). This provision provides that the
Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by
2 All. Mayank Tripathi & Ors. Vs. State of U.P. & Anr.
161
the Magistrate. The first proviso appended to this Section provides that no cognizance of an offence
shall be taken by the Magistrate without giving the accused an opportunity of being heard. The
second proviso appended to this Section provides certain contingencies under which, the Magistrate
need not examine the complainant and witnesses.

14. Considering the aforesaid, this Court is of the view that after filing of complaint under
Section 210 BNSS, the learned Magistrate has to first examine upon oath the complainant and the
witnesses, if any, and the substance of such examination is to be reduced in writing, which shall be
signed by the complainant and the witnesses and also by the Magistrate as per Section 223(1) of
BNSS and thereafter, after considering the same, if he finds that there is no sufficient ground to
proceed, he shall dismiss the complaint under Section 226 BNSS and if he finds that it can not be
dismissed as such, he shall afford opportunity to the accused for which the notice of being heard
shall be issued at that stage and the Magistrate would take cognizance only after affording an
opportunity of hearing to the accused the Magistrate would take cognizance and regulate its
procedure thereafter. It is for the reason that the accused may not be harassed unnecessarily. This
opportunity of hearing shall not be a mere formality.

15. On the issue related to Sections 225 BNSS, akin to Section 202 Cr.P.C. (now repealed) it
would be useful/appropriate to refer some pronouncements in which section 202 Cr.P.C. (now
repealed), akin to Section 225 BNSS was considered and explained:-

15.1 The relevant paras of Sunil Todi v. State of Gujarat, (2022) 16 SCC 762 : 2021 SCC
OnLine SC 1174, are being extracted hereinbelow:-

"35. The second submission which has been urged on behalf of the appellants turns upon
Section 202 CrPC, which is extracted:

"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.
162 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."

36. Under sub-section (1) of Section 202, a Magistrate upon the receipt of a complaint of
an offence of which he/she is authorised to take cognizance is empowered to postpone the issuance
of process against the accused and either : (i) enquire into the case; or (ii) direct an investigation
to be made by a police officer or by such other person as he thinks fit. The purpose of postponing
the issuance of process for the purposes of an enquiry or an investigation is to determine whether
or not there is sufficient ground for proceeding. However, it is mandatory for the Magistrate to do
so in a case where the accused is residing at a place beyond the area in which the Magistrate
exercises jurisdiction.

37. The accused persons in the present case reside at Aurangabad while the complaint
under Section 138 was filed before the Magistrate in Mundra. The argument of the appellants is
that in these circumstances, the Magistrate was duty-bound to postpone the issuance of process and
to either enquire into the case himself or to direct an investigation either by a police officer or by
some other person. Section 203 stipulates that if the Magistrate is of the opinion on considering the
statement on oath, if any, of the complainant and of the witnesses, and the result of the enquiry or
investigation if any under Section 202 that there is no sufficient ground for proceeding, he shall
dismiss the complaint recording briefly his reasons for doing so. The requirement of recording
reasons which is specifically incorporated in Section 203 does not find place in Section 202.
Section 204 which deals with the issuance of process stipulates that if in the opinion of the
Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may issue
: (a) in a summons case, a summons for attendance of the accused; (b) in a warrant case, a
warrant or if he thinks fit a summons for the appearance of the accused. These proceedings have
been interpreted in several judgments of this Court. For the purpose of the present case, some of
them form the subject-matter of the submissions by the appellants and the second respondent.

38. The provisions of Section 202 which mandate the Magistrate, in a case where the
accused is residing at a place beyond the area of its jurisdiction, to postpone the issuance of
process so as to enquire into the case himself or direct an investigation by police officer or by
another person were introduced by Act 25 of 2005 with effect from 23-6-2006. The rationale for the
amendment is based on the recognition by Parliament that false complaints are filed against
persons residing at far-off places as an instrument of harassment. In Vijay Dhanuka v. Najima
Mamtaj [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479] , this
Court dwelt on the purpose of the amendment to Section 202, observing : (SCC p. 644, paras 1112).

"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,
2 All. Mayank Tripathi & Ors. Vs. State of U.P. & Anr.
163
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.'

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 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."

39. This Court has held that the Magistrate is duty-bound to apply his mind to the
allegations in the complaint together with the statements which are recorded in the enquiry while
determining whether there is a prima facie sufficient ground for proceeding. In Mehmood UI
Rehman v. Khazir Mohammad Tunda [Mehmood UI Rehman v. Khazir Mohammad Tunda,
(2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] , this Court followed the dictum in Pepsi Foods Ltd.
v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC
749 : 1998 SCC (Cri) 1400] , and observed that setting the criminal law in motion against a person
is a serious matter. Hence, there must be an application of mind by the Magistrate to whether the
allegations in the complaint together with the statements recorded or the enquiry conducted
constitute a violation of law. The Court observed : (Mehmood Ul Rehman case [Mehmood UI
Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124], SCC pp. 42930, paras 20 & 22)

"20. The extensive reference to the case law would clearly show that cognizance of an
offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process
of taking judicial notice of certain facts which constitute an offence, there has to be application of
mind as to whether the allegations in the complaint, when considered along with the statements
recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person
to appear before the criminal court. It is not a mechanical process or matter of course. As held by
this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial
Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law
against a person is a serious matter.

22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section
204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements
and he is satisfied that there is ground for proceeding further in the matter by asking the person
against whom the violation of law is alleged, to appear before the court. The satisfaction on the
ground for proceeding would mean that the facts alleged in the complaint would constitute an
offence, and when considered along with the statements recorded, would, prima facie, make the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
accused answerable before the court. No doubt, no formal order or a speaking order is required to
be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed
under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated
only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of
each and every complaint filed before him and issue process as a matter of course. There must be
sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in
the complaint constitute an offence and when considered along with the statements recorded and
the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is
answerable before the criminal court, there is ground for proceeding against the accused under
Section 204 CrPC, by issuing process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case
where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482
CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal
court. To be called to appear before the criminal court as an accused is serious matter affecting
one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be
made a weapon of harassment."

These decisions were cited with approval in Abhijit Pawar v. Hemant Madhukar
Nimbalkar [Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC
(Cri) 192] . After referring to the purpose underlying the amendment of Section 202, the Court
observed : (SCC p. 541, para 25)

"25. ... the amended provision casts an obligation on the Magistrate to apply his mind
carefully and satisfy himself that the allegations in the complaint, when considered along with the
statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for
which the complaint is filed. This requirement is emphasised by this Court in a recent judgment in
Mehmood Ul Rehman v. Khazir Mohammad Tunda [Mehmood UI Rehman v. Khazir
Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] ..."

40.