Crl.Misc.not M-7504 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Misc.not M-7504 of 2010 (O&M) Date of decision:
19. 8.2013 Anil Kumar Sardana ......Petitioner Versus State of Haryana and another .......Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Gautam Dutt, Advocate, for the petitioner.
Mr.Satyavir Singh Yadav, Addl.A.G.Haryana.
None for respondent No.2.
**** SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.) seeking quashing of criminal complaint No.279/1 of 2009 dated 6.7.2009 (Annexure P-5) along with all subsequent proceedings arising therefrom including the summoning order dated 8.1.2010 (Annexure P-7).Learned counsel for the petitioner, during the couRs.of arguments, has restricted his prayer, at this stage, that the summoning order had been passed in violation of the mandatory provisions of Section 202 Cr.P.C.Learned counsel has submitted Devi Anita 2013.08.26 17:31 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.not M-7504 of 2010 (O&M) 2 that the accused were residing outside the jurisdiction of the trial Court, hence, the trial Court was required to hold an inquiry as envisaged under Section 202 Cr.P.C.before summoning the petitioner as an accused.
In support of his arguments, learned counsel has placed reliance on National Bank of Oman vs,Barakara Abdul Aziz and another (2013) 2 Supreme Court Cases(Crl) 731 wherein it has been held as under:- "7.The High Court took the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance of process under Sections 418 or 420 IPC.
Further, it was held that the CJ.did not follow the procedure laid down under Section 202 Cr.P.C.The High Court held that the Magistrate was obliged to postpone the process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding in a case where the accused is residing beyond the area in which the Magistrate exercises his jurisdiction.
The High Court noticed that the accused is a resident of District Dakshin Kannada, Karnataka and hence, the CJ.should have followed the procedure laid down in Section 202 CrPC.
The High Court, therefore, set aside the order dated 25-2- 2-11 issuing the process under Sections 418 and 420 IPC Devi Anita by the CJM, Ahmednagar.
Aggrieved by the said order the 2013.08.26 17:31 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.not M-7504 of 2010 (O&M) 3 Bank has come up with this special leave petition.
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 Cr.PC 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 CJ.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 Cr.PC 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 Cr.PC 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: Devi Anita i)on the materials placed by the complainant before 2013.08.26 17:31 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.not M-7504 of 2010 (O&M) 4 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 above mentioned 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 Devi Anita accused."
2013.08.26 17:31 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.not M-7504 of 2010 (O&M) 5 The amendment has come into force w.e.f.23.06.2006 vide Notification not S.O.923(E) dated 21.06.2006.”
11. We are of the view that the High Court has correctly held that the above mentioned amendment was not noticed by the CJM, Ahmednagar.
The CJ.had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 Cr.PC.
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."
Learned State counsel, on the other hand, has opposed the petition.
None has appeared on behalf of respondent No.2.
In the present case, a perusal of the complaint (Annexure P-5) itself reveals that the petitioner has been sought to be summoned at his address, New Delhi.
In these circumstances, the Court at SiRs.should have sought an inquiry as envisaged under Section 202(1) Cr.P.C.before ordering the summoning of the accused residing beyond its jurisdiction.
Accordingly, this petition is partly allowed, Impugned summoning order dated 8.1.2010 (Annexure P-7) is set aside.
The trial Court is directed to pass a fresh order in accordance with law.
(SABINA) JUDGE August 19, 2013 anita Devi Anita 2013.08.26 17:31 I attest to the accuracy and integrity of this document Chandigarh