# Vijay Kumar Banka v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-19
- **Case number:** Application U/S 482 No. 6935 of 2022
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-banka-v-state-of-u-p-ors-47742
- **Pages:** 12

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Sections
406, 420 - Magistrate while exercising his
power under Section 204 Cr.P.C., has to see
the material available on record filed by the
complainant - court below obliged to inquire
into the case by examining the complainant
as well as other witnesses and their
statements - court has to proceed on the
basis of the material available and if it is
found that there is sufficient material, the
court can issue process. (Para -22)

Complainant advanced money for purchasing a
plot - plot shown to him by applicant was not
given to him - complainant was cheated -
requested applicant to return money - complainant
was threatened - asked not to demand the money
- application under Section 156(3) Cr.P.C. - treated
as complaint - statement of complainant recorded
under Section 200 Cr.P.C. - statement of witnesses
recorded under Section 202 Cr.P.C - available
before the court - part of enquiry complete -
Magistrate himself examined the case - issued
summons - hence present application. (Para -
3,6,7,14,20,22,)

HELD:-While issuing process court applied his
mind. Speaking order passed after recording
satisfaction based on the statement under Sections
200/201 Cr.P.C.. While issuing process under
Section 204 Cr.P.C., magistrate discussed the
evidences of the complainant supported by the
witnesses, thus he has not committed any error .
(Para -21,22)

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

List of Cases cited:-

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES
which are systemic or otherwise cannot be
a ground to non-suit a diligent complainant.
The aforesaid reason, would also be
applicable where the case is instituted with
the
lodging
of
an
FIR
by
the
informant/complainant
diligently
and
within the period of limitation. In this
situation also the complainant/informant
cannot be non-suited for any subsequent
delay in taking cognizance, issuing process
or any other action contemplated under law,
for which the informant/complainant has no
control.

18. Recently Hon'ble Supreme Court in
the case of Amritlal v. Shantilal Soni7 has
held as under :-

Therefore, the enunciations and
declaration of law by the Constitution Bench
do not admit of any doubt that for the
purpose of computing the period of limitation
under Section 468 CrPC, the relevant date is
the date of filing of the complaint or the date
of institution of prosecution and not the date
on which the Magistrate takes cognizance of
the offence. The High Court has made a
fundamental error in assuming that the date
of taking cognizance i.e., 04.12.2012 is
decisive of the matter, while ignoring the fact
that the written complaint was indeed filed by
the appellant on 10.07.2012, well within the
period of limitation of 3 years with reference
to the date of commission of offence i.e.,
04.10.2009.

19. Adverting to the facts of the present
case, it is not disputed that the date of alleged
incident mentioned in the N.C.R. bearing
No.19/2013 is 09.03.2013 at 17:30 Hours.
The said N.C.R. was lodged on the same day
i.e. on 09.03.2013 itself. Therefore, in the
aforesaid view of the matter, this Court does
not find any substance in the argument of
learned counsel for the applicant that since
the charge sheet came to be filed after a lapse
of five years, three months and fourteen days
from the date of registration of NCR and the
same was barred by limitation and no
cognizance on the basis thereof could have
been taken.

20. As referred above, the charge sheet
under Sections 323 and 504 I.P.C. was
submitted by the Investigating Officer upon
conclusion of investigation after collecting
the credible evidence, therefore, the learned
trial Court has rightly taken cognizance of
this case and directed the same to be treated
as a complaint case keeping in view the
provisions contained in Section 2(d) Cr.P.C.

21 . In view of the aforesaid discussion,
this Court does not find any illegality,
impropriety
and
incorrectness
in
the
proceedings under challenge. There is no
abuse of court's process either.

22. The instant application under
Section 482 Cr.P.C. lacks merit, which
deserves to dismissed and the same is hereby,
dismissed, accordingly.
----------
(2022) 10 ILRA 508
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No. 6935 of 2022

Vijay Kumar Banka ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Paavan Awasthi

Counsel for the Opposite Parties:
10 All. Vijay Kumar Banka Vs. State of U.P. & Ors.
509
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Sections
406, 420 - Magistrate while exercising his
power under Section 204 Cr.P.C., has to see
the material available on record filed by the
complainant - court below obliged to inquire
into the case by examining the complainant
as well as other witnesses and their
statements - court has to proceed on the
basis of the material available and if it is
found that there is sufficient material, the
court can issue process. (Para -22)

Complainant advanced money for purchasing a
plot - plot shown to him by applicant was not
given to him - complainant was cheated -
requested applicant to return money - complainant
was threatened - asked not to demand the money
- application under Section 156(3) Cr.P.C. - treated
as complaint - statement of complainant recorded
under Section 200 Cr.P.C. - statement of witnesses
recorded under Section 202 Cr.P.C - available
before the court - part of enquiry complete -
Magistrate himself examined the case - issued
summons - hence present application. (Para -
3,6,7,14,20,22,)

HELD:-While issuing process court applied his
mind. Speaking order passed after recording
satisfaction based on the statement under Sections
200/201 Cr.P.C.. While issuing process under
Section 204 Cr.P.C., magistrate discussed the
evidences of the complainant supported by the
witnesses, thus he has not committed any error .
(Para -21,22)

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

List of Cases cited:-
1. Abhijit Pawar Vs Hemant Madhukar Nimbalkar
& anr. , (2017) 3 SCC 528

2.
Birla
Corporation
Limited
Vs
Adventz
Investments & Holdings Ltd. & ors. , (2019) 16
SCC 610;

3. Kishan Singh (Dead) Through Lrs. Vs Gurpal
Singh & ors. , (2010) 8 SCC 775

4. Pawan Kumar Yadav & ors. Vs St. of U.P. &
anr. 2013 SCC OnLine All 13108

5. Vijay Dhanuka & ors. Vs Najima Mamtaj &
ors. , MANU/SC.0251/2014

6. Abhijit Pawar Vs Hemant Madhukar Nimbalkar
& anr. , (2017) 3 SCC 528

7.
Birla
Corporation
Limited
Vs
Adventz
Investments & Holdings Ltd. & ors. , (2019) 16
SCC 610

8. Pawan Kumar Yadav & ors. Vs St. of U.P. &
anr.

9. Kishan Singh (Dead) Through Lrs. Vs Gurpal
Singh & ors.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Sri Paavan Awasthi, learned
counsel for the applicant, Sri Tilak Raj
Singh, the learned A.G.A. for the State.

2. The present application U/s 482
Cr.P.C. has been filed with a prayer to
quash the proceedings of Complaint Case
No. 3219 of 2018 (Satya Prakash Singh Vs.
Vijay Kumar Banka and Others), under
Sections 406, 420 I.P.C., pending in the
court
of
Chief
Judicial
Magistrate,
Lucknow, with a further prayer to stay the
operation and implementation of the order
dated 25.03.2022 passed in the aforesaid
complaint case.

3. The facts of the case are that Satya
Prakash Singh, the complainant filed an
application under Section 156(3) Cr.P.C.
before C.J.M. Lucknow making allegation
that he was looking for a plot in Lucknow
measuring an area of 100 sq. ft. and in that
regard he met the applicant along with his
associates Rajendra Prasad Chaudhary,
Pawan Kumar Sharma, Suddhakar Singh
and Raghvendra Singh. The complainant
510 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in the application that he was
shown a plot in Tiwari Ganj and was
informed that the cost of the plot is
Rs.4,50,000/- plus registry expenses and
that half of the total amount is required to
be deposited in cash and remaining half to
be paid as per the convenience of the
complainant. It is stated in the complainant
that he deposited Rs.2,00,000/- in cash with
the applicant and sought 15 days' time to
pay the remaining amount. Thereafter, the
complainant was contacted by the applicant
prior to 15 days' and he was asked to
deposit the remaining amount within four
days with an instruction that in case of nonpayment of remaining amount within four
days, the applicants will sell the plot to
some
other
person/customer.
The
complainant enquired about the plot situate
in Tiwari Ganj and he was informed that
the plot which was shown to the
complainant was not belonging to the
applicant, namely, Vijay Kumar Banka.

4. The complainant requested the
applicants to refund the amount already
deposited by him but the applicant and his
associates
visited
the
house
of
the
complainant and offered him another plot
situate at different location. As per the
complaint, the complainant rejected their
offer and asked them to refund the advance
of Rs.2,00,000/- paid by him. The applicant
and his associates gave assurance to refund
the amount and therefore many times the
complainant
requested
to
refund
the
amount on phone but the amount was not
refunded back.

5. Fueling the apathy of the
complainant that even on repeated request
the money was not refunded to him and one
day the petitioner and his associates came
to the house of the complainant with
weapons, abused the complainant and
threatened him to kill and refused to refund
the money. It is also mentioned in the
complaint that the complainant made a
report to the concerned police station but
his report was not lodged. Thereafter, he
also made a complaint to Superintendent of
Police, Lucknow but that too in vain. The
application under Section 156(3) Cr.P.C.
was treated as complaint.

6. The statement of the complainant
was recorded under Section 200 Cr.P.C. and
he supported the version of the complaint.
The statements of Purnamasi Sharma & Mr.
Brajendra Kumar, the witnesses of the case,
were recorded under Section 202 Cr.P.C.
They also supported the statements of fact
narrated by the complainant.

7. On the basis of the statement of the
complainant recorded under Section 200
Cr.P.C., the Chief Judicial Magistrate,
Lucknow passed the impugned order on
25.03.2022, by which the applicant has
been summoned under Sections 406, 420
I.P.C. which is being challenged by the
applicant in the present application.

8. Counsel for the applicant has
submitted that the entire allegation is
completely vague and fictitious and no
offence as such is made out against the
applicant. Counsel for the applicant has
submitted that the false and concocted
complainant has been filed just to harass
and blackmail the applicant and that too
after a delay of more than eight years.
Counsel for the applicant has further
submitted that while issuing summons, the
Magistrate committed error and the legal
course of Section 202(1) Cr.P.C. has not
been followed. According to his argument,
as the Section 202(1) Cr.P.C. provides, the
Magistrate is required to postpone issuance
of process where the accused is residing at
10 All. Vijay Kumar Banka Vs. State of U.P. & Ors.
511
a place beyond the area in which he
exercises his jurisdiction and shall enquire
into the case himself or directs the
investigation to be made by a police officer
or by such other person as he thinks fit for
the purposes of deciding whether or not
there is sufficient ground for proceeding.
Counsel for the applicant has vehemently
argued that the petitioner is a resident of
Gorakhpur but while summoning the
applicant enquiry under Section 202(1)
Cr.P.C. has not been conducted by the court
below and without doing enquiry and
investigation by police the impugned order
has been passed which is wholly illegal.
Counsel for the applicant in support of his
submissions/arguments has relied upon the
following judgments. [I] Abhijit Pawar Vs.
Hemant
Madhukar
Nimbalkar
and
Another reported in (2017) 3 SCC 528;
[II] Birla Corporation Limited Vs. Adventz
Investments and Holdings Limited and
Others reported in (2019) 16 SCC 610;
[III] Kishan Singh (Dead) Through Lrs.
Vs. Gurpal Singh and Others reported in
(2010) 8 SCC 775 and [IV] Pawan Kumar
Yadav and Others Vs. State of U.P. and
Another reported in 2013 SCC OnLine All
13108.

9. On the other hand, Sri Tilak Raj
Singh, learned A.G.A. has submitted before
this Court that a detailed complaint was
filed by the complainant and the statements
under Sections 200 and 202 Cr.P.C. of the
complainant as well as the witnesses were
considered
and
examined,
thereafter
summons have been issued. Learned
A.G.A. has submitted that in the impugned
order,
the
Chief
Judicial
Magistrate,
Lucknow has applied his mind and while
exercising his power, he has discussed the
case of complaint in nut shell and thereafter
summons have been issued. He has further
submitted that the provision of Section 202
Cr.P.C. has been followed while issuing the
process against the accused because the
Magistrate had got three options: (I) firstly,
in case the accused is residing in other
jurisdiction of the Magistrate, he will
enquire by himself; (ii) secondly, or with
the help of police and (iii) thirdly, in any
other manner. Sri Singh, the learned A.G.A.
has vehemently argued that the Magistrate
has applied the first procedure and he
himself has enquired about the factum of
the case and once the order is speaking and
his satisfaction is based on material, this is
the enquiry done by the Magistrate because
the Magistrate has no other option to
enquire about the accused who is residing
outside his jurisdiction, he has chosen the
first procedure of enquiry that was done by
him himself.

10. Now, I have to see the procedure
of Section 202 Cr.P.C. as well as the
various judgments relied upon by the
counsel. In this regard, provisions of
Section 202 Cr.P.C. is relavant to be seen
which is quoted below:

"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-
512 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 subsection(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 subsection(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. Counsel for the applicant Sri
Paavan Awasthi has relied upon a judgment
rendered by Hon'ble Supreme Court in the
case of Vijay Dhanuka and Others Vs.
Najima Mamtaj and Others reported in
MANU/SC.0251/2014 and had drawn the
attention of the Court to para -14 of the said
judgment, which is quoted below:

"14. It is evident from the
aforesaid provision, every inquiry other
than a trial conducted by the Magistrate or
Court is an inquiry. No specific mode or
manner of inquiry is provided under
Section 202 of the Code. In the inquiry
envisaged under Section 202 of the Code,
the witnesses are examined whereas under
Section 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 any
inquiry envisaged under Section 202 of the
Code. 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."

12. Hon'ble Supreme Court in the
case of Vijay Dhanuka (supra) has
observed that no specific mode or manner
of inquiry is provided under Section 202 of
the Code. The court below is obliged to
inquire into the case by examining the
complainant as well as other witnesses and
their statements. It has observed that the
court has to proceed on the basis of the
material available and if it is found that
there is sufficient material, the court can
issue process.

13. Sri Awasthi, counsel for the
applicant has further relied upon a
judgment rendered in Abhijit Pawar Vs.
Hemant
Madhukar
Nimbalkar
and
Another reported in (2017) 3 SCC 528 and
has relied upon the relevant paragraphs 24
and
25,
which
paras
are
extracted
hereinbelow:

"24. The essence and purpose of
this amendment has been captured by this
Court in Vijay Dhanuka v. Najima Mamtaj
in the following words: (SCC p. 644, paras
11-12)
10 All. Vijay Kumar Banka Vs. State of U.P. & Ors.
513

"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 subsection (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."

25. For this reason, the amended
provision casts an obligation on the
Magistrate to apply his mind carefully and
satisfy himself that the allegations in the
complaint, when considered along with the
statements
recorded
or
the
enquiry
conducted thereon, would prima facie
constitute the offence for which the
complaint is filed. This requirement is
emphasised by this Court in a recent
judgment Mehmood Ul Rehman Vs. Khazir
Mohammad Tunda (2015) 12 SCC 420 in
the following words: (SCC pp.429-30,
paras 20 & 22)

"20. The extensive reference to
the case law would clearly show that
cognizance of an offence on complaint is
taken for the purpose of issuing process to
the accused. Since it is a process of taking
judicial notice of certain facts which
constitute an offence, there has to be
application of mind as to whether the
allegations
in
the
complaint,
when
514 INDIAN LAW REPORTS ALLAHABAD SERIES
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 to
set in motion the process of criminal law
against a person is a serious matter.

* * *

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

14. A perusal of the aforesaid extract
shows that while exercising power for
issuance of process in complaint case, the
court has got three options (I) either the
court will call report from the police
concerned; (ii) or he will inquire himself;
(iii) or by such other person as he thinks fit.
In the present case the Magistrate himself
has examined the case and has issued the
summons. He has to apply his mind
carefully by considering the statement of
the complainant as well as the witnesses.

15. He has further relief upon paras
31 to 35 of the judgment rendered in Birla
Corporation
Limited
Vs.
Adventz
Investments and Holdings Limited and
Others reported in (2019) 16 SCC 610,
which is quoted below:

30. Under the amended subsection (1) to Section 202 Cr.P.C., it is
obligatory upon the Magistrate that before
summoning the accused residing beyond its
jurisdiction, he shall enquire into the case
himself or direct the investigation to be
10 All. Vijay Kumar Banka Vs. State of U.P. & Ors.
515
made by a police officer or by such other
person as he thinks fit for finding out
whether or not there is sufficient ground for
proceeding against the accused.

31.
By
Code
of
Criminal
Procedure (Amendment) Act, 2005, in
Section 202 Cr.P.C. of the Principal Act
with effect from 23.06.2006, in sub-section
(1), the words

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

were inserted by Section 19 of the
Criminal Procedure Code (Amendment)
Act, 2005. In the opinion of the legislature,
such amendment was necessary as false
complaints
are
filed
against
persons
residing at far off places in order to harass
them. The object of the amendment is to
ensure that persons residing at far off
places are not harassed by filing false
complaints making it obligatory for the
Magistrate to enquire. Notes on Clause 19
reads as under:-

"False
complaints
are
filed
against persons residing at far off places
simply to harass them. In order to see that
the 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."

32. Considering the scope of
amendment to Section 202 Cr.P.C., in Vijay
Dhanuka and Others v. Najima Mamtaj and
Others (2014) 14 SCC 638, it was held as
under:-

"12. ....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."

Since the amendment is aimed to
prevent
persons
residing
outside
the
jurisdiction of the court from being
harassed, it was reiterated that holding of
enquiry is mandatory. The purpose or
objective behind the amendment was also
considered by this Court in Abhijit Pawar v.
Hemant Madhukar Nimbalkar and Another
(2017) 3 SCC 528 and National Bank of
Oman v. Barakara Abdul Aziz and Another
(2013) 2 SCC 488.

33. 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. The
application of mind has to be indicated by
disclosure of mind on the satisfaction.
516 INDIAN LAW REPORTS ALLAHABAD SERIES
Considering the duties on the part of the
Magistrate for issuance of summons to the
accused in a complaint case and that there
must be sufficient indication as to the
application of mind and observing that the
Magistrate is not to act as a post office in
taking cognizance of the complaint, in
Mehmood Ul Rehman, (2015) 12 SCC 420,
this Court held as under:-

"22. ....the Code of Criminal
Procedure requires speaking order to be
passed under Section 203 Cr.P.C. 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
Cr.P.C., if any, the accused is answerable
before the criminal court, there is ground for
proceeding against the accused under Section
204
Cr.P.C.,
by
issuing
process
for
appearance. The application of mind is best
demonstrated by disclosure of mind on the
satisfaction. If there is no such indication in a
case where the Magistrate proceeds under
Sections 190/204 Cr.P.C., the High Court
under Section 482 Cr.PC. 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 supplied)

16. Birla Corporation Ltd. (supra)
has also pronounced the same dictum and
the Magistrate has to satisfy himself after
considering
the
statements
of
the
complainant as well as witnesses and
thereafter
forming
opinion
whether
offence is made out or not. In case the
offence is not made out, he would drop
the proceeding and if he comes to a
conclusion
that
material
constitute
offence against the accused, he has to
issue the process.

17. Reliance is also placed on the
judgment rendered in Pawan Kumar
Yadav and Others Vs. State of U.P. and
Another and more emphatically on Paras
12, 13, 14 and 15, which are extracted
hereinbelow:

"12.The
question
for
consideration before this Court is;

While discharging its obligation
under this mandatory provision court how
to act?

13. The perusal of provision give
discretion to Magistrate either to enquire
into the case himself or direct investigation
to be made by a police officer or by such
other person as he thinks fit. The enquiry
contemplated prior to insertion of this
provision was 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
10 All. Vijay Kumar Banka Vs. State of U.P. & Ors.
517

(iii) for deciding the question
purely from the point of view of the
complainant without at all averting to any
defence that the accused may have.

14. The insertion of provision was
intended to put a safe guard to those proposed
accused who are not residing in the territorial
jurisdiction of the Court. The legislature
found that 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 subsection (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.

15. To fulfil the intention of statute
the Magistrate before issuing process after
invoking this provision should satisfy himself
that the complaint filed against the person
residing out side jurisdiction of the court is
not for his harassment. How the Magistrate
satisfy himself must reflect from 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 decided 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."

18. Pawan Kumar Yadav (supra) is
based on same analogy. As per the this
judgment, the court has to proceed in
accordance with the provisions of Section
202(1) Cr.P.C. and while summoning the
accused
who
is
living
beyond
his
jurisdiction, he shall inquire either himself
or direct investigation to be made by a
police officer or by such other persons as
he thinks fit for finding out whether or not
there was sufficient ground for proceeding
against the accused. The Magistrate while
exercising his power under Section 202(1)
Cr.P.C. if he chooses to inquire himself
about the person residing beyond his
jurisdiction then he has to take a conscious
decision which should be based on material
available on record by a speaking order.

19. Further reliance was placed upon
the judgment rendered in Kishan Singh
(Dead) Through Lrs. Vs. Gurpal Singh
and Others and the relevant para 22 is
quoted below:

"22. In cases where there is a
delay in lodging an FIR, the court has to
look for a plausible explanation for such
delay.
In
the
absence
of
such
an
explanation, the delay may be fatal. The
reason for quashing such proceedings may
not be merely that the allegations were an
afterthought or had given a coloured
version of events. In such cases the court
should carefully examine the facts before it
for the reason that a frustrated litigant who
failed to succeed before the civil court may
initiate criminal proceedings just to harass
the other side with mala fide intentions or
the ulterior motive of wreaking vengeance
on the other party. Chagrined and frustrated
litigants should not be permitted to give
vent to their frustrations by cheaply
invoking the jurisdiction of the criminal
court. The court proceedings ought not to
518 INDIAN LAW REPORTS ALLAHABAD SERIES
be permitted to degenerate into a weapon of
harassment and persecution. In such a case,
where an FIR is lodged clearly with a view
to spite the other party because of a private
and personal grudge and to enmesh the
other party in long and arduous criminal
proceedings, the court may take a view that
it amounts to an abuse of the process of law
in the facts and circumstances of the case.
(Vide Chandrapal Singh v. Maharaj Singh
(1982) 1 SCC 466; State of Haryana v.
Bhajan Lal 1992 Supp (1) SCC 335; G.
Sagar Suri v. State of U.P. (2000) 2 SCC
636; and Gorige Pentaiah v. State of A.P.
(2008) 12 SCC 531.

20. In the case of Kishan Singh
(supra), the point of delay has been
considered wherein it is provided that
frustrated litigants should not be permitted
to give vent to their frustrations by cheaply
invoking the jurisdiction of the criminal
court. The proceeding for harassment
should not be allowed after long delay. In
the present case, the complaint indicates
that complainant had advanced money for
purchasing a plot and the plot which was
shown to him by the applicant was not
given to him and the complainant was
cheated by applicant. The complainant
requested the applicant that the money
advanced by him be returned to him but the
complainant was threatened and was asked
not to demand the money.

21. I have considered the argument
advanced by both parties and have gone
through the judgment relied upon carefully.
I come to a conclusion that while issuing
process the court has applied his mind. The
court has observed that the complainant -
Satya Prakash Singh was examined under
Section 200 Cr.P.C. who submitted that the
applicant had come to his house along with
co-accused Ram Khiladi Yadav and Pawan
Kumar Sharma, on 15.12.2010 and took
Rs.2,00,000/-. They had further asked the
complainant to deposit Rs.2,00,000/- in an
account of S.B.I. Bank. When he met the
applicant to provide the plot he stated that
his partnership had come to an end and he
will provide plot to some other site, on
which the complainant asked that he will
not take plot on other site and he requested
to refund his mind. Thereafter, the
applicant
disappeared.
When
the
complainant filed complaint to police, the
applicant consulted him. The complainant
requested the applicant to refund his money
but the applicant did not return the same.
The applicant and the other co-accused
intimidated the complainant and asked him
not to raise voice for refund of money and
keep his mouth shut. The statements of
witnesses, namely, Purnamasi Sharma and
Brajendra Kumar under Sections 200
Cr.P.C. was also recorded before the court
which was also seen and taken into account
by the court along with the aforesaid
contents of the complaint. The process has
been issued after getting satisfaction by the
court. It cannot be said that the order is
non-speaking rather it has been passed after
recording the satisfaction based on the
statement under Sections 200/201 Cr.P.C.

22. While court exercises it power
under Section 202(1) Cr.P.C., he has opted
to inquire the case by himself. In the
present
case
if
the
Magistrate
has
proceeded himself then what is the mode
by which he can get satisfaction regarding
accused residing outside the territorial
jurisdiction
of
the
Magistrate.
The
Magistrate while exercising his power
under Section 204 Cr.P.C., has to see the
material available on record filed by the
complainant. In the present case the
statement of the complainant was recorded
under Section 200 Cr.P.C. which was
10 All. Gaurav Kumar Agrahari @ Gaurav Kumar Vs. State of U.P. & Anr.
519
available to the court. Thereafter the
statements under Section 202 Cr.P.C. of the
witnesses were also available before the
court. He has discussed the statements of
the
complainant
supported
by
the
statements of the witnesses under Section
202 Cr.P.C. and therefore the part of
inquiry is complete. It cannot be said that
he has not made inquiry. While issuing the
process under Section 204 Cr.P.C., he has
discussed the evidences of the complainant
supported by the witnesses, thus he has not
committed any error.

23. In view of the aforesaid
discussion, I am of the opinion that the
order passed by the court below needs no
interference.
The
application
is
consequently dismissed.
----------
(2022) 10 ILRA 519
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.09.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 7188 of 2022

Gaurav Kumar Agrahari @ Gaurav Kumar
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Sameer Singh, Sri Sakshi Singh

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Sections
498-A, 323, 504, 506 - principles with
regard to exercise of powers under Section
482
Cr.P.C.
-
in
case
of
compromise/settlement between parties -
test to be applied - whether uncontroverted
allegation as made prima facie establishes
the offence and the chances of ultimate
conviction is bleak and no useful purpose is
likely to be served by allowing criminal
proceedings to be continue - quashing of the
criminal proceedings is an exception than a
rule. (Para -10 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - three circumstances under which
inherent jurisdiction may be exercised:-(i)
to give effect an order under the Code, (ii)
to prevent abuse of the process of the court
; (iii) to otherwise secure the ends of justice.
(Para -10)

Application filed - to quash - entire proceeding,
charge sheet and summoning order - applicant
filed compromise deed - verified compromise in
presence of applicant and opposite party no. 2 .
(Para - 3)

HELD:-Offence are more particularly a private
dispute. Entire proceedings quashed. (Para -
11,12 )

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

List of Cases cited:-
1. B.S. Joshi Vs St. of Haryana & ors., 2003 (4)
ACC 675

2. Gian Singh Vs St. of Punj., 2012 (10) SCC 303

3. Dimpey Gujral & ors. Vs Union Territory
Through Administrator, 2013 (11) SCC 697

4. Narendra Singh & ors. Vs St. of Punj. & ors..,
2014 (6) SCC 466

5. Yogendra Yadav & ors.. Vs St. of Jharkhand,
2014 (9) SCC 653

6. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr. (2017) 9
SCC 641

7. R.P. Kapoor Vs St. of Punj., AIR 1960 S.C.
866