# Omprakash & Ors v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 1160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Application U/S 482 Cr.P.C. No. 35542 of 2017
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omprakash-ors-v-state-of-u-p-anr-46889
- **Pages:** 14

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 482- Section
202(1) - Section 2(g) - Inquiry by
Magistrate-"Inquiry" as defined under
section 2(g) of the Code of Criminal
Procedure, means, every inquiry other
than a trial conducted by the Magistrate
or Court. No specific mode or manner of
inquiry is provided under section 202
Cr.P.C. In the inquiry which is envisaged
under section 202 Cr.P.C. the witnesses
are
examined.
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 under section 202
of the Code.It is settled in law that the
inquiry or the investigation as the case
may be, by the Magistrate is mandatory,
where the accused is residing beyond the
area of exercise of his jurisdiction and in
the inquiry envisaged under section 202
Cr.P.C the witnesses are examined. This
exercise of examination of the witnesses
by the Magistrate is an inquiry for the
purpose of deciding whether or not there
is sufficient ground for proceeding against
those accused. If witnesses have been
examined it cannot be said that any
inquiry, as contemplated by Section 202
Cr.P.C. was not held.

Where the accused is residing beyond the place
of jurisdiction, it is mandatory for the Magistrate
to postpone the issuance of process and
conduct an inquiry, which would mean the
examination of witnesses u/s 202(2) of the
CrPc.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- Section
204- Issue of Process- Summoning an
accused to face criminal trial is a serious
matter. The 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 allegation in the
complaint and the Magistrate, merely in
view thereof, has to set the Criminal law
into
motion.
The
Magistrate
has
to
examine the nature of the allegations
made in the complaint and the evidence
both oral and documentary in support
thereof. The Magistrate has to apply his
judicial mind to the facts of the case and
the law applicable therein. He has to,
prima-facie, arrive at satisfaction that the
offence is made out and the accused
deserves summoning for trial. Not only
this, the application of judicial mind and
the satisfaction must also be reflected
from the order. Although, it is not required
that the Magistrate should discuss in
detail or make a comparative assessment
of the evidence, but, mere statement that
the Magistrate had gone through the
complaint, documents and heard the
complainant, as such, as reflected in the
order,
will
not
be
sufficient
to
demonstrate application of judicial mind;
the Magistrate cannot act in a mechanical
manner. At the same time, the order of
summoning under section 204 Cr.P.C.
does not require any explicit reasons to be
stated and a detailed expression of his
vie

## Text

_Characters 0–39,958 of 47,740. This is a partial read: ask again with offset=39958 for what follows._

1160 INDIAN LAW REPORTS ALLAHABAD SERIES
into by the trial court in this case. This
Court does not deem it proper, and
therefore cannot be persuaded to have a
pre-trial before the actual trial begins. A
threadbare discussion of various facts and
circumstances, as they emerge from the
allegations made against the accused, is
being purposely avoided by the Court for
the reason, lest the same might cause any
prejudice to either side during trial. But it
shall suffice to observe that the perusal of
the F.I.R. and the material collected by the
Investigating Officer on the basis of which
the charge sheet has been submitted makes
out a prima facie case against the accused
at this stage and there appear to be
sufficient ground for proceeding against the
accused. The charge sheet has been
submitted before the court concerned on
23.09.2018
but
the
same
has
been
challenged before this Court on 10.11.2020
the delay whereof is about nearly two years
and two months and the delay in
challenging the same is also a ground for
quashing the charge sheet by this Court
while exercising its powers under Section
482 Cr.P.C.

28. I do not find any justification to
quash the charge sheet or the proceedings
against the applicants arising out of them as
the case does not fall in any of the
categories recognized by the Apex Court
which may justify their quashing. All the
judgments relied upon by the learned
counsel for the applicants referred to above
are clearly distinguishable in the facts of
the present case.

29. The prayer for quashing the
impugned charge-sheet as well as the entire
proceedings of the aforesaid State case are
refused, as I do not see any abuse of the
court's process at this pre-trial stage.

30. However, it is observed that if the
bail has not been obtained as yet, the
applicant may appear before the court
below and apply for bail within one month
from today. The court below shall make an
endeavour to decide the bail application
keeping in view the observations made by
the Court in the Full Bench decision of
Amrawati and another Vs. State of U.P.
2004 (57) ALR 290 and also in view of the
decision given by the Hon'ble Supreme
Court in the case of Lal Kamlendra Pratap
Singh Vs. State of U.P. 2009 (3) ADJ 322
(SC).

31. In the aforesaid period or till the
date of appearance of the applicant in the
court below, whichever is earlier, no
coercive measures shall be taken against
the applicant.

32. With the aforesaid observations,
the present application under Section 482
Cr.P.C. is, accordingly, disposed of.
----------
(2021)03ILR A1160
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 Cr.P.C. No. 35542 of 2017

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

Counsel for the Applicants:
Sri Satendra Singh, Sri Sarvesh Kumar
Dubey, Sri Ajay Vikram Yadav

Counsel for the Opposite Parties:
A.G.A., Sri Hemendra Pratap Singh
3 All. Omprakash & Ors. Vs. State of U.P. & Anr.
1161
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482- Section
202(1) - Section 2(g) - Inquiry by
Magistrate-"Inquiry" as defined under
section 2(g) of the Code of Criminal
Procedure, means, every inquiry other
than a trial conducted by the Magistrate
or Court. No specific mode or manner of
inquiry is provided under section 202
Cr.P.C. In the inquiry which is envisaged
under section 202 Cr.P.C. the witnesses
are
examined.
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 under section 202
of the Code.It is settled in law that the
inquiry or the investigation as the case
may be, by the Magistrate is mandatory,
where the accused is residing beyond the
area of exercise of his jurisdiction and in
the inquiry envisaged under section 202
Cr.P.C the witnesses are examined. This
exercise of examination of the witnesses
by the Magistrate is an inquiry for the
purpose of deciding whether or not there
is sufficient ground for proceeding against
those accused. If witnesses have been
examined it cannot be said that any
inquiry, as contemplated by Section 202
Cr.P.C. was not held.

Where the accused is residing beyond the place
of jurisdiction, it is mandatory for the Magistrate
to postpone the issuance of process and
conduct an inquiry, which would mean the
examination of witnesses u/s 202(2) of the
CrPc.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- Section
204- Issue of Process- Summoning an
accused to face criminal trial is a serious
matter. The 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 allegation in the
complaint and the Magistrate, merely in
view thereof, has to set the Criminal law
into
motion.
The
Magistrate
has
to
examine the nature of the allegations
made in the complaint and the evidence
both oral and documentary in support
thereof. The Magistrate has to apply his
judicial mind to the facts of the case and
the law applicable therein. He has to,
prima-facie, arrive at satisfaction that the
offence is made out and the accused
deserves summoning for trial. Not only
this, the application of judicial mind and
the satisfaction must also be reflected
from the order. Although, it is not required
that the Magistrate should discuss in
detail or make a comparative assessment
of the evidence, but, mere statement that
the Magistrate had gone through the
complaint, documents and heard the
complainant, as such, as reflected in the
order,
will
not
be
sufficient
to
demonstrate application of judicial mind;
the Magistrate cannot act in a mechanical
manner. At the same time, the order of
summoning under section 204 Cr.P.C.
does not require any explicit reasons to be
stated and a detailed expression of his
views is neither required nor warranted.

It is settled law that the proposed accused
cannot be summoned in a mechanical manner -
Order summoning the accused must reflect that
the Magistrate has arrived at the satisfaction, by
application of mind in a reasonable and
judicious manner, that a prima facie case is
made out from the contents of the complaint
and from the statements of the witnesses but a
detailed order is not necessary.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- Exercise of
jurisdiction under Section 482 Cr.P.C.- It
is well settled that this power is to be
exercised
only
in
exceptional
circumstances and only when a prime
facie case is not made out against the
accused and the criminal prosecution
amounts to abuse of the process of the
Court or to secure the ends of justice it is
necessary to interfere. The Magistrate has
been given an undoubted discretion in the
matter which has to be applied judicially
and once it has been applied judicially it is
not for the higher Courts to substitute
their discretion for that of the Magistrate
or to examine the case on merits with a
view to find out whether or not the
allegations in the complaint, if proved,
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
would ultimately end in conviction of the
accused nor the disputed defence of the
accused can be considered at that stage

It is settled law that the power u/s 482 CrPc has
to be exercised sparingly and only to prevent
the abuse of the process of Court or where the
Magistrate has failed to exercise his discretion in
a judicious manner,, however, the High Court
cannot either consider the defence of the
accused or appreciate disputed questions of fact
as the same are matters of evidence and can be
adjudicated upon only during the course of trial.
(Para 11, 15, 18, 28, 31)

Criminal Application accordingly rejected.
(E-2)

Judgements/ Case law cited / relied
upon:-

1. National Bank of Oman Vs Barakara Abdul
Aziz & anr. (2013) 2 SCC 488( cited)

2. Ram Dev Food Products Pvt. Lt. Vs St. of
Guj., (2015) 6 SCC 439( cited)

3. M/s Pepsi Foods Ltd. Vs Special Judicial
Magistrate, AIR 1998 SC 128(cited)

4. Vijay Dhanuka Vs Najzma Mamtaj (2014) 14
SCC 638

5.
''Birla
Corporation
Ltd
Vs

Adventz
Investments & Holdings (2019) 16 SCC 610.

6. GHCL Employees Stock Option Trust Vs India
Infoline Ltd. (2013) 4 SCC 505

7. Bhushan Kumar Vs State (NCT of Delhi) AIR
2012 SC 1747

8. Anil Kumar Vs M. K. Aiyappa & anr, (2013) 10
SCC 705

9. R.R. Kapur Vs St. of Punj.,AIR 1960 SC 866

10. St. of Har. Vs Bhajan Lal, AIR 1992 SC
604

11. Sonu Gupta Vs Deepak Gupta, (2015) 3 SCC
424
12. Harshendra Kumar D. Vs Rebatilata Koley &
ors. (2011) 3 SCC 351

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

1. Heard Sri Ajay Vikram Yadav,
learned counsel for the applicants, Sri Azad
Singh, learned AGA appearing for the
State/opposite party.

2. No one responded for the opposite
party no.2 even in the revised call.

3. This application under Section 482
of the Criminal Procedure Code, 1973
(Cr.P.C.) has been filed with prayer to
quash the order dated 06.05.2017, passed
by the learned Additional Chief Judicial
Magistrate, Sadabad, District Hathras, in
Criminal Complaint Case No.1256 of 2016
(Murarilal Vs. Omprakash and others),
under Sections 323, 342, 379 and 504 IPC,
Police Station Sadabad, District Hathras, as
also the entire proceedings of the said
complaint case.

4. Briefly stated facts of the case as
per the application/petition are that the
marriage of the daughter of applicant no.1
was solemnized with the son of opposite
party no.2 as per Hindu Rites and Rituals,
in which huge amount was spent and so
many gifts were presented to the opposite
party no.2. The opposite party no.2 and his
family persons after sometime of marriage,
started demanding additional dowry and as
the demand could not be fulfilled the
opposite party no.2 alongwith his family
persons started harassment and ill treatment
to the daughter of the applicant and also
committed
maar-peet
with
her.
On
25.09.2016
she
was
thrown out
of
matrimonial home. On 26.09.2016, the
daughter of the applicant no.1 lodged a first
information report against the opposite
3 All. Omprakash & Ors. Vs. State of U.P. & Anr.
1163
party no.2 and his family members which
was registered as Case Crime No. 1211 of
2016, under Sections 323, 498-A, IPC and
Section 3/4 D.P. Act, Police Station
Kotwali, District Mainpuri. She was
medically examined at District Hospital,
Mainpuri on 26.09.2016.

5. The opposite party no.2, as a
counter blast and to create pressure to make
settlement moved an application under
Section 156(3) Cr.P.C. on 20.10.2016
which was treated as a complaint case by
the Additional Chief Judicial Magistrate,
Sadabad, District Hathras. After recording
the statement of the complainant under
Section 200 Cr.P.C. and of the witnesses
under Section 202 Cr.P.C., the Magistrate
passed
the
summoning
order
dated
06.05.2017 summoning the applicants to
face trial under Sections 323, 342, 379,
504, IPC.

6. Learned counsel for the applicant
submits that the accused persons are
residents of a place outside the territorial
jurisdiction of the Magistrate, concerned
and as such an enquiry under Section 202
Cr.P.C. must have been held which was not
held and therefore, the order is bad. He
further submits that the order under
challenge has been passed mechanically
and without judicious application of mind.
Learned counsel for the applicant has
placed reliance on the judgments of
Hon'ble the Supreme Court in National
Bank of Oman versus Barakara Abdul
Aziz & Another (2013) 2 SCC 488; Ram
Dev Food Products Pvt. Lt. Vs. State of
Gujarat, (2015) 6 SCC 439 and M/s Papsi
Foods
Limited
Vs.
Special
Judicial
Magistrate, AIR 1998 SC 128, in support
of his above submissions.

7. Learned A.G.A. appearing for the
State submits that the summoning order has
been passed on the basis of the material
available on record before the learned Civil
Judge
(JD)/Judicial
Magistrate.
The
Magistrate was satisfied that a prima-facie
case for summoning was made out. The
satisfaction is based on the material on
record. He further submits that the enquiry
under Section 202 Cr.P.C., was held as two
witnesses were examined. He submits that
any particular mode of enquiry is not
prescribed under the Code. He has placed
reliance on the judgments in the cases of
Vijay Dhanuka versus Najzma Mamtaj
(2014) 14 SCC 638 and in ''Birla
Corporation
Ltd
versus
Adventz
Investments And Holdings (2019) 16 SCC
610.

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

9. I proceed to consider the first
submission of the learned counsel for the
applicants. The submission is that from the
complaint itself it was evident that the
accused applicants are residents of District
Mainpuri which fell out side the territorial
jurisdiction of the concerned Magistrate, as
such, it was incumbent on the Magistrate to
hold enquiry as provided by Section 202
Cr.P.C.

10. So far as, holding of an inquiry by
the Magistrate under section 202 Cr.P.C. in
cases where the accused persons are
residing at a place beyond the area of the
territorial jurisdiction of the Magistrate, is
concerned Section 202 Cr.P.C. as amended
w.e.f. 23.06.2006 provides as under:-
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

"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.

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

12. In "National Bank of Oman Vs.
Barakara Abdul Aziz reported in 2013 (2)
3 All. Omprakash & Ors. Vs. State of U.P. & Anr.
1165
SCC 488" the facts were that the accused
was residing out side the jurisdiction of the
Chief Judicial Magistrate concerned. He
failed to carry out any inquiry or order
investigation as contemplated under the
amended section 202 Cr.P.C. The said
amendment was not noticed by the
Magistrate. The process was issued on
perusal of the complaint and the documents
attached thereto. The Hon'ble Supreme
Court held that the order passed by the
Magistrate was illegal and the High Court
acted in accordance with law in setting
aside that order. Paragraph nos. 8, 9, 10 ,
11 and 12 of National Bank of Oman
(Supra) read as under:-

"8. We find no error in the view
taken by the High Court that the CJM,
Ahmednagar had not carried out any
enquiry
or
ordered
investigation
as
contemplated under Section 202 CrPC
before issuing the process, considering the
fact that the respondent is a resident of
District Dakshin Kannada, which does not
fall within the jurisdiction of the CJM,
Ahmednagar. It was, therefore, incumbent
upon him to carry out an enquiry or order
investigation
as
contemplated
under
Section 202 CrPC before issuing the
process.

9. The duty of a Magistrate
receiving a complaint is set out in Section
202 CrPC and there is an obligation on the
Magistrate to find out if there is any matter
which calls for investigation by a criminal
court. The scope of enquiry under this
section is restricted only to find out the
truth or otherwise of the allegations made
in the complaint in order to determine
whether process has to be issued or not.
Investigation under Section 202 CrPC is
different
from
the
investigation
contemplated in Section 156 as it is only
for holding the Magistrate to decide
whether or not there is sufficient ground for
him to proceed further. The scope of
enquiry under Section 202 CrPC is,
therefore, limited to the ascertainment of
truth or falsehood of the allegations made
in the complaint:

(i) on the materials placed by the
complainant before the court; (ii) for the
limited purpose of finding out whether a
prima facie case for issue of process has
been made out; and

(iii) for deciding the question
purely from the point of view of the
complainant without at all adverting to any
defence that the accused may have.
10. Section 202 CrPC was amended by the
Code of Criminal Procedure (Amendment)
Act, 2005 and the following words were
inserted:

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

The notes on clauses for the
abovementioned
amendment
read
as
follows:

"False
complaints
are
filed
against persons residing at far off places
simply to harass them. In order to see that
innocent persons are not harassed by
unscrupulous persons, this clause seeks to
amend 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
amendment has come into force w.e.f. 23-62006 vide Notification No. S.O. 923(E)
dated 21-6-2006.

11. We are of the view that the
High Court has correctly held that the
abovementioned
amendment
was
not
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
noticed by the CJM Ahmednagar. The CJM
had failed to carry out any enquiry or
order investigation as contemplated under
the amended Section 202 Cr.P.C. Since it is
an admitted fact that the accused is
residing outside the jurisdiction of the
CJM, Ahmednagar, we find no error in the
view taken by the High Court.

12. All the same, the High Court
instead of quashing the complaint, should
have directed the Magistrate to pass fresh
orders following the provisions of Section
202 Cr.P.C. Hence, we remit the matter to
the Magistrate for passing fresh orders
uninfluenced by the prima facie conclusion
reached by the High Court that the bare
allegations of cheating do not make out a
case against the accused for issuance of
process under Section 418 or 420 I.P.C.
The CJM will pass fresh orders after
complying with the procedure laid down in
Section 202 Cr.P.C. within two months
from the date of receipt of this order. "

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

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

15. On the point, if inquiry as
mandated by section 202 Cr.P.C was held,
the Hon'ble Supreme Court in Vijay
Dhanuka (Supra) held that "inquiry" as
defined under section 2(g) of the Code of
Criminal Procedure, means, every inquiry
other than a trial conducted by the
Magistrate or Court. No specific mode or
manner of inquiry is provided under section
202 Cr.P.C. In the inquiry which is
envisaged under section 202 Cr.P.C. the
witnesses are examined. 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 under section 202 of the
Code.

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

"11. Section 202 of the Code,
inter alia, contemplates postponement of
the issue of the process "in a case where
the accused is residing at a place beyond
the area in which he exercises his
jurisdiction" and thereafter to either
inquire into the case by himself or direct an
investigation to be made by a police officer
or by such other person as he thinks fit. In
the face of it, what needs our determination
is as to whether in a case where the
accused is residing at a place beyond the
area in which the Magistrate exercises his
jurisdiction, inquiry is mandatory or not.

12. The words "and shall, in a
case where the accused is residing at a
place beyond the area in which he
3 All. Omprakash & Ors. Vs. State of U.P. & Anr.
1167
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.

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

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

14. In view of our answer to the
aforesaid question, the next question which
falls for our determination is whether the
learned Magistrate before issuing summons
has held the inquiry as mandated under
Section 202 of the Code. The word
"inquiry" has been defined under Section
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
2(g) of the Code, the same reads as
follows:

"2. (g)''inquiry' means every
inquiry, other than a trial, conducted under
this Code by a Magistrate or court;"

It is evident from the aforesaid
provision, every inquiry other than a trial
conducted by the Magistrate or the court is
an inquiry. No specific mode or manner of
inquiry is provided under Section 202 of the
Code. In the inquiry envisaged under Section
202 of the Code, the witnesses are examined
whereas under Section 200 of the Code,
examination of the complainant only is
necessary with the option of examining the
witnesses present, if any. This exercise by the
Magistrate, for the purpose of deciding
whether or not there is sufficient ground for
proceeding against the accused, is nothing
but an inquiry envisaged under Section 202
of the Code.

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

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

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

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

19. In the present case, the statement
of the witnesses were recorded under
Section 202 Cr.P.C. as is admitted to the
applicants vide paragraph no.9 of the
affidavit, wherein, it has been stated that
the statement of PW-1, Balkishan, and PW2 Mukesh Chandra were recorded under
Section
202
Cr.P.C.
by
the
court
concerned.

20.

The
statement
of
the
complainant/opposite
party
no.2
was
recorded on 08.03.2017 and the statement
of the witnesses P.W.-1 and P.W.-2 were
recorded on 07.04.2017.

21. In view of the above, this Court
finds that there was postponement of
issuance of process, after recording the
statement of the complainant and by
recording the statements of the witnesses
on a later date i.e. 07.04.2017, the enquiry
under Section 202 Cr.P.C. was also held
before passing the summoning order.

22. National Bank of Oman (Supra)
relied upon by the learned counsel for the
applicants, was a case of no enquiry under
Section 202 Cr.P.C, as is evident from
3 All. Omprakash & Ors. Vs. State of U.P. & Anr.
1169
paragraphs 8 and 11 of the report. The
amended provision of Section 202 Cr.P.C.
was
not
noticed
by
the
concerned
Magistrate and the process was issued
merely on the statements recorded under
Section 200 Cr.P.C.

23. Now I proceed to consider the
next submission of the learned counsel for
the applicants that the summoning order
has been passed mechanically and without
application of judicial mind.

24. In M/s Pepsi Foods Ltd. (Supra)
the Hon'ble Supreme Court held in paragraph
no.28 that 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."

25. In Birla Corporation Limited
(Supra), the Hon'ble Supreme Court has
held as under in paragraph 54:-

"54. While ordering issuance of
process against the accused, the Magistrate
must take into consideration the averments
in
the
complaint,
statement
of
the
complainant examined on oath and the
statement of witnesses examined. As held in
Mehmood Ul Rehman, since it is a process
of taking a judicial notice of certain facts
which constitute an offence, there has to be
application of mind whether the materials
brought before the court would constitute
the offence and whether there are sufficient
grounds
for
proceeding
against
the
accused. It is not a mechanical process."

26. In GHCL Employees Stock
Option Trust Vs. India Infoline Ltd.
(2013) 4 SCC 505, the Hon'ble Supreme
Court has held as under in paragraph 14:-

"14. Be that as it may, as held by
this Court, summoning of accused in a
criminal case is a serious matter. Hence,
criminal law cannot be set into motion as a
matter of course. The order of Magistrate
summoning the accused must reflect that he
has applied his mind to the facts of the case
and the law applicable thereto. The
Magistrate has to record his satisfaction
with regard to the existence of a prima
facie case on the basis of specific
allegations
made
in
the
complaint
supported by satisfactory evidence and
other material on record."

27. In the case of Bhushan Kumar
Vs. State (NCT of Delhi) AIR 2012 SC
1747, the Hon'ble Supreme Court has
reiterated the above principles. It has been
further held that the summoning order
under Section 204 of the code requires no
explicit reasons to be stated, because, it is
imperative that the Magistrate must have
taken notice of the accusations and applied
his mind to the allegations made in the
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
police report and the material filed
therewith. Paragraph nos. 13 to 15 of
Bhushan Kumar (supra), read as follows:

"13)
In
Smt.
Nagawwa
vs.
Veeranna Shivalingappa Konjalgi & Ors.
(1976) 3 SCC 736, this Court held that it is
not the province of the Magistrate to enter
into a detailed discussion on the merits or
demerits of the case. It was further held
that in deciding whether a process should
be issued, the Magistrate can take into
consideration improbabilities appearing on
the face of the complaint or in the evidence
led by the complainant in support of the
allegations. The Magistrate has been given
an undoubted discretion in the matter and
the discretion has to be judicially exercised
by him. It was further held that once the
Magistrate has exercised his discretion, it
is not for the High Court, or even this
Court, to substitute its own discretion for
that of the Magistrate or to examine the
case on merits with a view to find out
whether or not the allegations in the
complaint, if proved, would ultimately end
in conviction of the accused.
14) In Dy. Chief Controller of Imports &
Exports vs. Roshanlal Agarwal & Ors.
(2003) 4 SCC 139, this Court, in para 9,
held as under:

9. In determining the question
whether any process is to be issued or not,
what the Magistrate has to be satisfied is
whether there is sufficient ground for
proceeding and not whether there is
sufficient ground for conviction. Whether
the evidence is adequate for supporting the
conviction, can be determined only at the
trial and not at the stage of inquiry. At the
stage of issuing the process to the accused,
the Magistrate is not required to record
reasons. This question was considered
recently in U.P. Pollution Control Board v.
Mohan Meakins Ltd.(2000) 3 SCC 745 and
after noticing the law laid down in Kanti
Bhadra Shah v. State of W.B. (2000) 1 SCC
722, it was held as follows: (SCC p. 749,
para 6)

"The legislature has stressed the
need to record reasons in certain situations
such as dismissal of a complaint without
issuing process. There is no such legal
requirement imposed on a Magistrate for
passing detailed order while issuing
summons. The process issued to accused
cannot be quashed merely on the ground
that the Magistrate had not passed a
speaking order."

15) In U.P. Pollution Control
Board vs. Dr. Bhupendra Kumar Modi &
Anr., (2009) 2 SCC 147, this Court, in
paragraph 23, held as under:

It is a settled legal position that
at the stage of issuing process, the
Magistrate is mainly concerned with the
allegations made in the complaint or the
evidence led in support of the same and he
is only to be prima facie satisfied whether
there are sufficient grounds for proceeding
against the accused."

28. The law is clear and settled that
summoning an accused to face criminal
trial is a serious matter. The 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
allegation in the complaint and the
Magistrate, merely in view thereof, has to
set the Criminal law into motion. The
Magistrate has to examine the nature of the
allegations made in the complaint and the
evidence both oral and documentary in
support thereof. The Magistrate has to
apply his judicial mind to the facts of the
case and the law applicable therein. He has
to, prima-facie, arrive at satisfaction that
the offence is made out and the accused
deserves summoning for trial. Not only
3 All. Omprakash & Ors. Vs. State of U.P. & Anr.
1171
this, the application of judicial mind and
the satisfaction must also be reflected from
the order. Although, it is not required that
the Magistrate should discuss in detail or
make a comparative assessment of the
evidence, but, mere statement that the
Magistrate had gone through the complaint,
documents and heard the complainant, as
such, as reflected in the order, will not be
sufficient to demonstrate application of
judicial mind; the Magistrate cannot act in
a mechanical manner, as has been held also
in Anil Kumar Vs. M. K. Aiyappa and
another, (2013) 10 SCC 705. At the same
time, the order of summoning under section
204 Cr.P.C. does not require any explicit
reasons to be stated and a detailed
expression of his views is neither required
nor warranted as held in Bhushan Kumar
Vs. State (NCT of Delhi) AIR 2012 SC
1747.

29. In view of the above position in
law, the submission of the learned counsel
for the applicants is correct on principles,
but, the question is if the order under
challenge does or does not stand the test of
the above settled law.

30. Before dealing with the above
question the scope of interference with the
summoning order in the exercise of
jurisdiction under Section 482 Cr.P.C. also
deserves consideration.

31. So far as the power of this Court
under Section 482 Cr.P.C. against the
summoning order is concerned it is well
settled that this power is to be exercised
only in exceptional circumstances and
only when a prime facie case is not made
out against the accused and the criminal
prosecution amounts to abuse of the
process of the Court or to secure the ends
of justice it is necessary to interfere. The
Magistrate has been given an undoubted
discretion in the matter which has to be
applied judicially and once it has been
applied judicially it is not for the higher
Courts to substitute their discretion for
that of the Magistrate or to examine the
case on merits with a view to find out
whether or not the allegations in the
complaint, if proved, would ultimately
end in conviction of the accused nor the
disputed defence of the accused can be
considered at that stage, as has been held
by Hon'ble the Supreme Court in the
cases of R.R. Kapur Vs.