# Smt. Anjana & Ors v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-15
- **Case number:** Application U/S 482 No. 15217 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anjana-ors-v-state-of-u-p-anr-45436
- **Pages:** 11

## Headnote

(A) Criminal law - Indian Penal Code,
1860 - Sections 452/323/506 - Code of
criminal procedure, 1973 - Section 200 -
Examination of complainant - Section 202
Cr.P.C - Postponement of issue of process
- Issuance of process should not be
mechanical nor should it be made as a
instrument of harassment to the accused -
Lack of material particulars and nonapplication of mind as to the materials
cannot be brushed aside as a procedural
irregularity - 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
-
examination
of
the
complainant
and
the
witnesses
as
envisaged under section 200 Cr.P.C could
not be equated or be a substitute for the
inquiry/investigation
required
under
section 202 Cr.P.C. Para - 10,17,25

Complaint filed by opposite part no.2 (
Husband) - under section 156 (3) Cr.P.C against
the applicants -averments - marriage of the
applicant no. 1(wife) with opposite party no. 2
was solemnized on 07.06.2017 - later on their
relationship
became
strained
-
applicant
summoned - pending before judicial magistraate
- applicant accused persons are the resident at
a place out side the territorial jurisdiction of the
learned Judicial Magistrate - statements of the
witnesses were recorded under section 202
Cr.P.C.Para - 2,5,26

HELD:- Prima facie, the dispute is of
matrimonial nature or outcome of matrimonial
dispute. Criminal proceedings are malicious
and to wreck vengeance cannot be rejected at
the out right in the back ground of the facts
of the present case. Contradictions in the
statements of complainant and the witnesses
also appear to have some substance. Fair
chances of resolution of matrimonial dispute
through the process of mediation, cannot be
ruled out.Para -28

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

List of Cases Cited:-
92 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

11 All. Smt. Anjana & Ors. Vs. State of U.P. & Anr.
91

35. In this backdrop of admitted facts
the applicant came to be let off in the
departmental disciplinary proceedings on
the ground that the wife is an income tax
assessee, thus, taking her income to be
lawful. On the other hand, the authorities
trained in enquiry/investigation, prima
facie, found the explanation furnished by
the applicant a mere cover up of his
unexplained income far beyond his known
and legal source. The alleged business and
income of the wife, prima facie, was taken
to be a sham transaction - the basis for
prosecution. In the given facts to contend
that exoneration in disciplinary proceedings
would tantamount to quashing of criminal
proceedings would be travesty of justice.

36. Having regard to the law and
reasons hereinabove, the petition lacks
merit, accordingly, dismissed on fact and
law.

37. The trial court to proceed in
accordance
with
law
without
being
influenced by the observations made in the
order and judgment.
----------
(2020)11ILR A91
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 No. 15217 of 2020

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

Counsel for the Applicants:
Sri Vikas Rana

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 452/323/506 - Code of
criminal procedure, 1973 - Section 200 -
Examination of complainant - Section 202
Cr.P.C - Postponement of issue of process
- Issuance of process should not be
mechanical nor should it be made as a
instrument of harassment to the accused -
Lack of material particulars and nonapplication of mind as to the materials
cannot be brushed aside as a procedural
irregularity - 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
-
examination
of
the
complainant
and
the
witnesses
as
envisaged under section 200 Cr.P.C could
not be equated or be a substitute for the
inquiry/investigation
required
under
section 202 Cr.P.C. Para - 10,17,25

Complaint filed by opposite part no.2 (
Husband) - under section 156 (3) Cr.P.C against
the applicants -averments - marriage of the
applicant no. 1(wife) with opposite party no. 2
was solemnized on 07.06.2017 - later on their
relationship
became
strained
-
applicant
summoned - pending before judicial magistraate
- applicant accused persons are the resident at
a place out side the territorial jurisdiction of the
learned Judicial Magistrate - statements of the
witnesses were recorded under section 202
Cr.P.C.Para - 2,5,26

HELD:- Prima facie, the dispute is of
matrimonial nature or outcome of matrimonial
dispute. Criminal proceedings are malicious
and to wreck vengeance cannot be rejected at
the out right in the back ground of the facts
of the present case. Contradictions in the
statements of complainant and the witnesses
also appear to have some substance. Fair
chances of resolution of matrimonial dispute
through the process of mediation, cannot be
ruled out.Para -28

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

List of Cases Cited:-
92 INDIAN LAW REPORTS ALLAHABAD SERIES
1. National Bank of Oman Vs Barakara Abdul
Aziz & anr. , (2013) 2 SCC 488

2. Smt. Parvender Kaur & anr. Vs St. of U.P. &
anr. , u/s 482 Cr.P.C. No. 27369 of 2018

3. Arvind Kumar Chaurasiya & anr. Vs St. of U.P.
&anr. , u/s 482 Cr.P.C. No. 27788 of 2018

4. Vijay Dhanuka etc. Vs Najima Mamtaj etc ,
(2014) 14 SCC 638

5.
"Birla
Corporation
Ltd.
Vs
Adventz
Investments and Holdings , (2019) 16 SCC 610

6. National Bank of Oman Vs Barakara Abdul
Aziz , (2013) 2 SCC 488

7. Vijay Dhanuka etc. Vs Nazima Mamtaj etc ,
(2014) 14 SCC 638

8.
Birla
Corporation
limited
Vs
Adventz
Investments and holdings , (2019) 16 SCC 610

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

1. Heard Sri Vikas Rana, learned
counsel for the applicants and Sri Pankaj
Saxena, learned A.G.A for the State.

2. This application under section 482
Cr.P.C. has been filed by the applicants to
quash the entire proceedings along with
impugned
summoning
order
dated
02.11.2019 passed by Judicial Magistrate,
Bisalpur, District Pilibhit in Complaint
Case No. 216 of 2019 (Rahul Vs. Anjana
and others), under Sections 452/323/506
IPC, Police Station Bisalpur, District
Pilibhit,
pending
before
the
Judicial
Magistrate Bisalpur, District Pilibhit.

3. The opposite party no. 2, the
husband of applicant no. 1 has filed
complaint on 20.02.2019 under section 156
(3) Cr.P.C against the applicants on the
averments that the marriage of the
applicant no. 1 with opposite party no. 2
was solemnized on 07.06.2017, but later on
their relationship became strained. On
10.07.2018 the applicant no. 1 with her
maternal uncle and aunty i.e. applicant nos.
2 and 3 went out of the matrimonial home
and had taken away some other jewelry and
never came back. On the date of incident
27.10.2018 the applicants forcibly entered
into the house of opposite party no. 2 and
beaten him. On the said complaint after
recording the statement of opposite party
no. 2 under section 200 Cr.P.C and the
statement of witnesses PW-1 and PW-2
under section 202 Cr.P.C the learned
Magistrate passed the summoning order
against the applicants under sections
452/323/506 IPC.

4. Learned counsel for the applicants
submits that the applicants have been
falsely implicated. The correct facts are that
due to matrimonial dispute between the
applicant no 1 and opposite party no. 2, the
applicant no. 1 lodged an F.I.R. on
05.12.2018 in case crime no. 699 of 2018,
under sections 498-A/323/504 IPC and 3/4
D.P. Act, P.S. Prem Nagar, District Bareilly
against the opposite party no. 2 and his
other family members. The applicant no. 1
also filed Criminal Misc. Case No. 143 of
2019, under section 125 Cr.P.C against the
opposite party no. 2 before the Principal
Judge Family Court in which by order
dated 15.02.2020 the maintenance has been
awarded to the applicant no. 1. Learned
counsel for the applicants further submits
that the applicant nos. 4 and 5 being
maternal uncle and aunty and with whom
the applicant no. 1 is residing, they have
also been falsely implicated.

5. Submission of the learned counsel
for the applicant is that the complaint case
has been filed to create pressure upon the
applicants
to
compromise,
the
cases
11 All. Smt. Anjana & Ors. Vs. State of U.P. & Anr.
93
instituted by the applicant no. 1 as
mentioned above. It has further been
submitted that, predominately the dispute
between the parties is matrimonial dispute.
The learned Magistrate failed to consider
that the complainant in his statement did
not take the name of the applicant no. 1 in
the incident dated 27.10.2018 whereas PW2 in his statement under section 202 Cr.P.C
did not take the names of applicant nos. 2
and 3, which made the entire version of
complaint doubtful. The requisite inquiry
under section 202 Cr.P.C. was not made by
the learned Magistrate. The applicant
accused persons are the resident at a place
out side the territorial jurisdiction of the
learned
Judicial
Magistrate
Bisalpur,
District Pilibhit and as such inquiry under
section 202 Cr.P.C was mandatory. He
placed reliance on the judgment of Hon'ble
Supreme Court in the Case of "National
Bank of Oman Vs. Barakara Abdul Aziz &
Another reported in (2013) 2 SCC 488".
He has further placed reliance on the
judgments of this Court in case of "Smt.
Parvender Kaur And Another Vs. State of
U.P. and Another passed in Application
under section 482 Cr.P.C. No. 27369 of
2018 decided on 12.09.2018", and in the
case of "Arvind Kumar Chaurasiya and
another Vs. State of U.P. and Another
passed in Application under section 482
Cr.P.C. No. 27788 of 2018 decided on
27.08.2018", in support of his contention
that a conscious decision has to be taken by
the learned Magistrate and specific order is
required
to
be
passed
regarding
postponement of issuing process and for
initiation of inquiry either by himself or
ordering investigation, as the case may be.
He has further placed reliance on judgment
of Hon'ble Punjab & Haryana High Court
in the case of "S.K. Bhowmik Vs. S.K.
Arora
and
Another"
decided
on
19.09.2007."

6. Learned counsel for the applicants
has further submitted that the dispute being
matrimonial/outcome
of
matrimonial
dispute.
There
are
fair
chances
of
settlement
through,
the
process
of
mediation.

7. Per contra, Sri Pankaj Saxena
learned A.G.A has submitted that although,
inquiry contemplated by section 202
Cr.P.C. in cases where the accused persons
reside beyond the territorial jurisdiction of
the concerned Judicial Magistrate, is must,
but he submits that in the present case such
inquiry was made. The statement of
witnesses were recorded under section 202
Cr.P.C. and, therefore, it cannot be said that
no such inquiry was held by the learned
Magistrate. Sri Pankaj Saxena learned
A.G.A has placed reliance upon the
judgments of Hon'ble Supreme Court in the
case of "Vijay Dhanuka etc. Vs. Najima
Mamtaj etc reported in (2014) 14 SCC
638",
and
in
the
case
of
"Birla
Corporation Ltd. Vs. Adventz Investments
and Holdings reported in (2019) 16 SCC
610".

8. I have considered the submissions
advanced by learned counsel for the
applicants and learned A.G.A for the State
and perused the material brought on record.

9. So far as, the question of holding of
an inquiry by the learned 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,
it is relevant to reproduce section 202
Cr.P.C. as amended w.e.f 23.06.2006 which
reads as under:-

202 . Postponement of issue of
process.
94 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.

10. A bare perusal of section 202
Cr.P.C. shows that in case in which the
accused is residing at a place beyond the
area in 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 it fit, for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the accused.
The use of expression shall makes it
mandatory for the Magistrate to hold the
inquiry contemplated by the section where
the accused resides beyond his territorial
jurisdiction. The expression shall, is some
times read as directory but ordinarily it is
read as mandatory. The inquiry may be
made by the Magistrate himself or he may
direct investigation to be made 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 limited purpose
of finding out whether a prima facie case
for issue of process is made out. The
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 the accused. Issuance of process
should not be mechanical nor should it be
made as a instrument of harassment to the
accused. Lack of material particulars and
non-application of mind as to the materials
cannot be brushed aside as a procedural
irregularity.

11. In "National Bank of Oman Vs.
Barakara Abdul Aziz reported in 2013 (2)
SCC 488" the facts were that the accused
was residing out side the jurisdiction of the
Chief Judicial Magistrate concerned and he
failed to carry out any inquiry or order
investigation as contemplated under the
amended
section
202
Cr.P.C.
which
11 All. Smt. Anjana & Ors. Vs. State of U.P. & Anr.
95
amendment was not noticed by the learned
Magistrate, and 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 the said order. It is relevant to
reproduce the para nos. 8, 9, 10 and 11 of
National Bank of Oman (Supra) 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. 23-6-2006 vide Notification No.
S.O. 923(E) dated 21-6-2006.

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
96 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In "Vijay Dhanuka etc Vs.
Nazima Mamtaj etc reported in 2014 (14)
SCC 638" wherein also the residence of the
accused was shown at the place beyond the
territorial
jurisdiction
of
the
learned
Magistrate and the Magistrate had issued
process
after
examination
of
the
complainant and two witnesses, questions
arose for determination (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 learned Magistrate
before issuing summons had held the
inquiry as mandated by section 202 Cr.P.C.

13. In Vijay Dhanuka etc. (Supra) the
Hon'ble Supreme Court held that in 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.

14. On the point, if inquiry as
mandated by section 202 Cr.P.C was held
by the Magistrate, the Hon'ble Supreme
Court in Vijay Dhanuka etc (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
envisaged under section 202 Cr.P.C. the
witnesses are examined and this exercise
by the Magistrate for the purpose of
deciding, whether or not there is sufficient
ground for proceeding against the accused,
was held nothing but an inquiry under
section 202 of the Code.

15. 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 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
11 All. Smt. Anjana & Ors. Vs. State of U.P. & Anr.
97
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 in Udai Shankar Awasthi v. 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
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.
98 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

16. In the Case of "Birla Corporation
limited Vs. Adventz Investments and
holdings reported in 2019 (16) SCC 610"
the Hon'ble Supreme Court has reiterated
the same preposition 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.

17. Thus, the law as settled is 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. In the inquiry
envisaged under section 202 Cr.P.C the
witnesses are examined and this exercise
by the Magistrate is an inquiry for the
purpose of deciding whether or not there is
sufficient ground for proceeding against the
accused. If witnesses have been examined
it cannot be said that any inquiry as
contemplated by amended section 202
Cr.P.C. was not held.

18. Learned counsel for the applicants
has placed reliance on the judgments of this
Court in Smt. Parvinder Kaur and another
(Supra),
Arvind
Kumar
Chaurasiya
(Supra) and judgment of Punjab &
Haryana High Court in the case of S.K.
Bhowmik (Supra).

19. In Smt. Parvinder Kaur and
another (Supra) as well as Arvind Kumar
Chaurasiya (Supra) this Court held that the
Magistrate before issuing process after
invoking this provision should satisfy
himself that the complaint filed against the
person residing outside the jurisdiction of
the court is not for his harassment. How the
Magistrate has satisfied himself in this
regard
must
be
reflected
from
the
proceedings conducted by him. Therefore,
a conscious decision has to be taken.
Specific order is required to be passed
regarding postponement of issuing process
and for initiation of inquiry either by
himself or ordering investigation, as the
case may be. If the Magistrate decides to
inquire himself he should put necessary
questions with the witnesses and also to the
complainant, like, identity of accused,
acquaintance of complainant and witness
with the accused, relationship in between
accused and complainant and in between
complainant and witnesses etc. If, the
Magistrate decides to order investigation
then purpose of investigation and person to
whom investigation is entrusted should be
clearly mentioned by giving a reasonable
time to complete the investigation.

20. In the case Smt. Parvinder Kaur
and another (Supra) this court has held as
under in paragraph nos. 5, 6 and 7 :-

"5. To fulfil the intention of the
statue, a Magistrate before issuing process
after invoking this provision should satisfy
himself that the complaint filed against the
person residing outside the jurisdiction of
the court is not for his harassment. How the
11 All. Smt. Anjana & Ors. Vs. State of U.P. & Anr.
99
magistrate has satisfied himself in this
regard
must
be
reflected
from
the
proceedings conducted by him. Therefore, a
conscious decision has to be taken. Specific
order is required to be passed regarding
postponement of issuing process and for
initiation of enquiry either by himself or
ordering investigation, as the case may be.
If the Magistrate decides to enquire himself
he should put necessary questions with the
witnesses and also to the complainant, like;
identity
of
accused,
acquaintance
of
complainant and witness with the accused,
relationship in between accused and
complainant and in between complaint and
witnesses etc.

6. If, however, the Magistrate
decides
to
order
investigation
then
purpose of investigation and person to
whom investigation is entrusted should be
clearly mentioned by giving a reasonable
time to complete the investigation. It is
also
important
to
note
that
this
investigation under section 202 Cr.P.C. is
different from the investigation under
section
156
Cr.P.C.
Therefore,
the
Magistrate before ordering investigation
must ensure that the investigating officer
or any other person shall not be allowed
to
arrest
the
accused
in
such
investigation. The Magistrate should also
keep in mind the proviso added to subsection(1) of section 202, which deals
with cases wherein investigation could
not be directed.

7. In the present case, it is not
reflected from the proceedings that the
Magistrate has exercised his jurisdiction
after complying with the mandatory
provisions of Section 202 Cr.P.C. To the
contrary, the Magistrate has summoned
accused person, as is evident from the
impugned
summoning
order
without
complying with the mandatory provisions
of Section 202 Cr.P.C."

21. The aforesaid judgments in Smt.
Parvinder Kaur and another (Supra) and
Arvind Kumar Chaurasiya (Supra) have
considered the Apex Court judgment in
National Bank of Oman (Supra), which
was a case where any inquiry as mandated
by section 202 Cr.P.C. was not held by the
learned Magistrate, as the amended section
202 Cr.P.C. was not noticed by the
concerned Magistrate. In National Bank of
Oman (Supra), learned Magistrate had not
examined the witnesses. The process was
issued on perusal of the complaint, the
statement of the complainant and the
documents attached to the complaint. A
perusal of the judgments of this Court,
aforesaid, shows that in those cases the
Magistrate
had
not
exercised
the
jurisdiction after complying with the the
mandatory provisions of section 202
Cr.P.C. In the present case two witnesses
were examined under sections 202 Cr.P.C.
Therefore, the present case is not a case of
no inquiry or no investigation as mandated
by section 202 Cr.P.C.

22. The cases of Smt. Parvinder Kaur
and another (Supra) and Arvind Kumar
Chaurasiya (Supra) have also not taken
into consideration the Apex Court judgment
in Vijay Dhanuka etc. (Supra) which
clearly lays down that in the inquiry
envisaged under section 202 Cr.P.C. the
witnesses are examined. No specific mode
or manner of inquiry is provided by section
202 of the Code.

23. It may be open for the Magistrate
to put necessary questions to the witnesses
and also to the complainant like identity of
accused acquaintance of complainant and
witnesses
with
the
accused,
their
relationship, etc, in holding inquiry under
section 202 Cr.P.C., but if he does not hold
inquiry in that particular manner it would
100 INDIAN LAW REPORTS ALLAHABAD SERIES
not vitiate the order of summoning, in as
much as, the object of the inquiry is only
for the purpose of deciding whether or not
there is a sufficient ground for proceeding
against the accused and at this stage the
Magistrate is not holding any trial. He is
holding an "inquiry" which means an
inquiry other than trial. However, the order
of the Magistrate must indicate that he has
made inquiry and on such inquiry he is
prima facie satisfied that a case for
summoning is made out.

24. In view of the above, the case of
Smt. Parvinder Kaur and another (Supra)
and Arvind Kumar Chaurasiya (Supra) are
of no help to the applicants.

25. In the case of S.K. Bhowmik
(Supra) also no inquiry or investigation
was held and the process was issued in
violation of the mandatory requirement of
section 202 Cr.P.C. In that case the
complaint
was
filed
earlier
to
the
amendment made in section 202 Cr.P.C
which
provision
made
inquiry
or
investigation mandatory in a case where the
accused resided outside the area of
jurisdiction of concerned Magistrate. The
evidence was also recorded prior to such
amendment, but after the amendment came
into effect no inquiry was held by the
Magistrate although the amendment had
come into force before issuing of process.
Hon'ble Punjab & Haryana High Court held
that the examination of the complainant
and the witnesses as envisaged under
section 200 Cr.P.C could not be equated or
be a substitute for the inquiry/investigation
required under section 202 Cr.P.C. It was
held that the process which was issued was
on the basis of the examination of the
complainant and witnesses CW-2 made
under section 200 Cr.P.C., which was done
much prior to the date of the amendment of
section
202
Cr.P.C.
No
inquiry/investigation was held as required
under section 202 Cr.P.C. Thus, this court
finds that in the case of S.K. Bhowmik
(Supra) any inquiry or investigation as
mandated by section 202 Cr.P.C. was not
held. The case of S.K. Bhowmik (Supra) is
also of no help to the applicants.

26. In the present case the statements
of the witnesses were recorded under
section 202 Cr.P.C. It is also admitted to the
applicants vide para no. 6 of the affidavit
that the statements of PW-1 Sanjay Jaiswal
and PW-2 Santosh Saxena were recorded
under section 202 Cr.P.C. by the court
concerned.
The
statement
of
the
complainant was recorded on 27.04.2019
and the statement of PW-2 was recorded on
10.05.2019. Therefore, there is also time
gap in recording the statements of the
complainant and the witnesses.

27. This Court is therefore, not
convinced with the submission of learned
counsel for the applicants that any inquiry
as contemplated by section 202 Cr.P.C. was
not conducted by the learned Magistrate.
This ground of challenge to the summoning
order therefore, fails.

28. This Court, however, finds that
there is a matrimonial dispute between the
parties and litigation are also pending
between them. Prima facie, the dispute is of
matrimonial
nature
or
outcome
of
matrimonial dispute. The submission of the
learned counsel for the applicants that the
criminal proceedings are malicious and to
wreck vengeance cannot be rejected at the
out right in the back ground of the facts of
the
present
case.
Prima
facie,
the
submission that there are contradictions in
the statements of complainant and the
witnesses also appear to have some
11 All. Preeti @ Ranu Singh Vs. State of U.P. & Anr.
101
substance. The fair chances of resolution of
matrimonial dispute through the process of
mediation, as has been submitted by the
learned counsel for the applicants, cannot
be ruled out.

29. Matter requires consideration,
after affording opportunity of hearing to
opposite party no. 2.

30. Learned A.G.A has already
accepted notice on behalf of State-opposite
party no. 1.

31. Issue notice to opposite party no.
2. He may file counter affidavit within a
period of four weeks.

32. Rejoinder affidavit, if any, may be
filed within two weeks thereafter.

33. List this case on 09.12.2020 in the
additional cause list.

34. On the next date of listing
opposite party no. 2 may also intimate the
Court
his
willingness
for
mediation
proceeding for resolution of the dispute.

35. As an interim measure, it is
provided that till the next date of listing no
coercive action shall be taken against the
applicants in the aforesaid complaint case.
----------
(2020)11ILR A101
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 15900 of 2020

Preeti @ Ranu Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Kumar Singh, Sri Anup Kumar
Singh

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law - Indian Penal Code, 1860 -
Sections 323, 504, 506, 498-A - Dowry
prohibition Act,1961 - Sections 3/4 at pretrial stage, the proceedings cannot be
quashed by this Court by exercising its
power under Section 482 Cr.P.C. - A conduct
which abuses and makes a mockery of the
judicial process of the court is to be dealt
with iron hands and no person can tinker
with it to prevent, prejudice, obstruct or
interfere with the administration of justice -
prima facie case against the accused -
sufficient ground for proceeding against the
accused. Para-7,10,11

Opposite party no.2 moved an application under
Section 156 (3) Cr.P.C. for lodging of the first
information report against the accused persons -
who are husband, mother-in-law and sister-inlaw of opposite party no.2 - allegation - demand
of dowry - statutory investigation under Chapter
XII Cr.P.C. - submission of chargesheet -
summoning of accused persons.Para - 2,4

HELD:- Quashing or setting aside the impugned
orders as well as the entire proceedings of the
aforesaid criminal case is refused - NO illegality,
impropriety and incorrectness in the impugned
orders or the proceedings under challenge -
absolutely no abuse of court's process. Para - 12

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

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)

1. Heard the learned counsel for the
applicant and Mr. Pankaj Srivastava,
learned A.G.A. for the State as well as