# Nanku @ Nankulal & Ors v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Application U/S 482. No. 655 of 2023
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanku-nankulal-ors-v-state-of-u-p-anr-49736
- **Pages:** 6

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 202 (1)- 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. While
passing the impugned summoning order
by the magistrate, he did not apply his
judicial mind- 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-The
mandate
of
provision of Section 202 (1) of Cr.P.C. has
clearly been violated and thus, the order
impugned is not tenable.

The amendment to sub-section (1) of section
202 CrPc makes it mandatory for the Magistrate
to apply his judicial mind and conduct either an
enquiry himself or through an investigating
officer or any other person, before summoning
an accused who is residing beyond his territorial
jurisdiction. (Para 11, 12, 12)

Criminal Application allowed. (E-3)

Case Law/ Judgements relied upon:-

Mahboob & ors Vs St. of U.P. & anr. 2017 (98)
ACC 593

## Text

730 INDIAN LAW REPORTS ALLAHABAD SERIES
introduce the provision of pension, rather it
merely
asked
the
officers
of
the
Corporation to ensure communication of
the relevant Government Orders regarding
payment of pension to the employees of the
Corporation.

32. Even otherwise, when the
services of the respondent were not
pensionable
as
per
the
provisions
contained in Regulation 39 of the
Regulations of 1981, the same could not
have been made pensionable merely by a
Circular issued by the Corporation as a
Circular
cannot
override
and
the
provisions of Statutory Regulations.

33. Therefore, we are of the
considered view that the Tribunal has
erred in holding that the services of the
respondent
have
to
be
treated
as
pensionable and the judgment and order
passed by the Tribunal is not sustainable.

34. In view of the aforesaid
discussion, the instant Writ Petition
stands allowed. The Judgment and order
dated 16.09.2014, passed by the State
Public Services Tribunal allowing Claim
Petition No. 1482 of 2001 is hereby
quashed and the Claim Petition is
dismissed.
----------
(2023) 2 ILRA 730
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482. No. 655 of 2023

Nanku @ Nankulal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Shailendra Kumar Dubey, Ram Krishna
Pratap Singh, Sant Prasad Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 202 (1)- 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. While
passing the impugned summoning order
by the magistrate, he did not apply his
judicial mind- 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-The
mandate
of
provision of Section 202 (1) of Cr.P.C. has
clearly been violated and thus, the order
impugned is not tenable.

The amendment to sub-section (1) of section
202 CrPc makes it mandatory for the Magistrate
to apply his judicial mind and conduct either an
enquiry himself or through an investigating
officer or any other person, before summoning
an accused who is residing beyond his territorial
jurisdiction. (Para 11, 12, 12)

Criminal Application allowed. (E-3)

Case Law/ Judgements relied upon:-

Mahboob & ors Vs St. of U.P. & anr. 2017 (98)
ACC 593

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard learned counsel for the
applicants, learned A.G.A. and perused the
record.

2. In view of order proposed to be
passed, issuance of notice to opposite party
no.2 is dispensed with.
2 All. Nanku @ Nankulal & Ors. Vs. State of U.P. & Anr.
731

3. The present application under
Section 482 Cr.P.C. has been filed with the
prayer to quash the impugned summoning
order dated 18.2.2021, U/s 323,504,506
IPC, Police Station- Chinhat, District-
Lucknow issued by the ACJM-I, Lucknow
in Criminal Misc./Complaint Case No.
1571/2019 and also revisional order dated
19.9.2022 passed by the Sessions Judge,
Lucknow
in
Criminal
Revision
No.
488/2022.

4. Learned counsel for applicants has
submitted that the opposite party no.2
moved an application U/s 156(3) CrPC
alleging therein that on 22.2.2019 at 7.30
pm when the complaint was returning after
running practice for the recruitment in the
police force, then suddenly accusedapplicants reached G.S. Lawn and started
beating him by kicks and fists. It is also
submitted that the accused-applicants have
looted Rs. 1800, one ring and one Nokia
Mobile having mobile No. 7518452656
from the complainant. The complainant
stated that he immediately informed the
police station Chinhat about the said
incident and to the SSP, Luckow on
25.2.2019 for lodging of the FIR against
the applicants. But the FIR was not
registered. Thus this application U/s 156(3)
CrPC has been treated as a complaint case.
Thereafter, the statement of opposite party
no.2 and two witnesses namely, Suresh
Kumar Yadav and Mahesh Singh were
recorded U/s 200 & 202 CrPC on
30.7.2019 and 12.1.2021 respectively.
Thereafter, on the basis of statements of the
opposite party no.2 and witnesses recorded
u/s 200 & 202 CrPC respectively, the trial
court without applying judicial mind
wrongly summoned the applicants.

5. The counsel for the applicants is
assailing the summoning order dated
18.2.2021 on the ground that the ACJM
1st, Lucknow while passing the impugned
summoning order without application of
judicial mind has recorded a wrong finding
that the wife of the complainant was beaten
by the applicants and she has got injury but
the case of complainant case was not as
such. On perusal of the statement of the
complainant and the witnesses recorded U/s
200 and 202 CrPC respectively, it reflects
that the applicants inflicted injury to
complainant. But there is no whisper
regarding the presence of the wife of
opposite party no.2 at place of occurrence.
Thus, the findings recorded by the trial
court is perverse and as such the
summoning order is itself liable to be set
aside.
Being
aggrieved
with
the
summoning order, the applicants filed
revision but the same was rejected by the
learned revisional court in limine without
any speaking order. Thus, it is also liable to
be set aside.

6. Learned counsel for the applicants
submitted that as per provision of Section
202(1) CrPC, as soon as a complaint is
given before the magistrate, he shall either
inquire into the case or pass order for
investigation, if the accused is residing
outside the territorial jurisdiction of the
magistrate concerned. But in the complaint
case, no investigation has been made by
any of the above authorized persons.

7. The provisions of Section 202
Cr.P.C. 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
732 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

8. In support of his submissions, learned
counsel for the applicants placed reliance on a
judgment of this court in the case of Mahboob
and others Vs. State of U.P. and another 2017
(98) ACC 593. The relevant paragraphs of the
said judgment are given below:-

(6) In the case of Sonu Gupta
versus Deepak Gupta (2015) Vol.3 SCC
424, it was held by the Hon'ble Apex Court
that :-

"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 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, because the Magistrate must
not undertake the exercise to find out at
this stage whether the materials will lead to
conviction or not. (Para 8) "

(7)
In
a
recent
judgment
delivered by Hon'ble the Apex Court on
14.12.2016 in Criminal Appeal No.1225 of
2016 (arising out of SLP(Crl.) No.9318 of
2012)
Abhijit
Pawar
vs.
Hemant
Madhukar Nimbalakar & Anr. It was held
that the admitted position in law is that in
those cases where the accused is residing
at a place beyond the area in which the
Magistrate exercises his jurisdiction, it is
mandatory on the part of the Magistrate to
conduct an inquiry or investigation
before issuing the process. Section 202
of the Cr.P.C. was amended in the year
by
the
Code
of
Criminal
Procedure(Amendment) Act, 2005, with
effect from 22nd June, 2006 by adding
the words that ''and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises
his jurisdiction'. There is a vital purpose
or objective behind this amendment,
namely, to ward off false complaints
against such persons residing at a far off
places in order to save them from
unnecessary
harassment.
Thus,
the
amended provisions casts an obligation
on the Magistrate to conduct inquiry or
direct investigation before issuing the
2 All. Nanku @ Nankulal & Ors. Vs. State of U.P. & Anr.
733
process, so that false complaints are
filtered and rejected.

(8) Referring the case law in
Vijay Dhanuka vs. Najima Mamtaj (2014)
14 SCC 638;

"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 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."

(9) In Mehmood UI Rehmand
vs. Khazir Mohammad Tund (2016) 1
SCC (Cri) 124; it was held as under :

"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
[Pepsi Foods Ltd. v. 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.
734 INDIAN LAW REPORTS ALLAHABAD SERIES

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 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 or 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.

 "Emphasis added."

(10) Hon'ble Apex Court has
further dealt with the nature of inquiry
which is required to be conducted by the
Magistrate and referring the case of Vijay
Dhanuka (supra) it was held as under:

"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 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."

9. Learned A.G.A. vehemently
opposed the prayer made by the learned
counsel for the applicants and submitted
that it is the discretionary power of the trial
court to pass the summoning order and
2 All. Shyam Babu Sharma Vs. State of U.P. & Anr.
735
thus, the impugned summoning order has
been passed by the magistrate after
applying judicial mind.

10. I have heard learned counsel for
the applicants and learned AGA appearing
for the State and perused the record.

11. From bare perusal of the
summoning order dated 18.2.2021 as well
as statements of the opposite party no.2 and
other witnesses recorded U/s 200 & 202
CrPC, 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. While passing the impugned
summoning order by the magistrate, he did
not apply his judicial mind and in
summoning order the magistrate indicated
that due to incident the wife of the
complainant had got injury, but this is not
the case of the prosecution. Thus, on this
ground the summoning order passed by the
magistrate is bad in law.

12. 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.

13. 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.

14.

Consequently,
the
instant
application is allowed and the impugned
summoning order dated 18.2.2021 passed
in the Complaint Case No. 1571 of 2019 as
well as the revisional order dated 19.9.2022
is hereby set aside.

15. Learned Magistrate is hereby
directed to pass a fresh summoning order
within a period of two months from the
date of production of this order before him
in the light of observations made herein
above.
----------
(2023) 2 ILRA 735
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482. No. 1319 of 2023

Shyam Babu Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ms. Mamta Singh

Counsel for the Opposite Parties:
G.A., Sri Amit Daga

Criminal Law- Code of Criminal Procedure,
1973- Sections 437 & 439- Criminal Misc.
Application U/S 482 Cr.P.C No. 18472 /
2022 was disposed of by a co-ordinate
bench of this Court on the request of
learned counsel for the applicant therein
on his undertaking that he shall surrender