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2013 DIGILAW 198 (PNJ)

Pritpal Kaur v. State of Punjab

2013-02-15

SABINA

body2013
JUDGMENT Mrs. Sabina, J.:- This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of criminal complaint No.29-T dated 14.6.2010 (Annexure P-1) and the summoning order dated 11.7.2012 under Sections 406, 498-A of the Indian Penal Code, 1860 (Annexure P-2). 2. Learned counsel for the petitioners has submitted that a perusal of the complaint itself revealed that no criminal offence could be said to have been committed by the petitioners. Complainant had got married to the son of the petitioners on 7.11.1996. As per the complainant, on 4.9.1997, she had been given beatings by all the accused for bringing less dowry. Thereafter, the complainant had not resided with the petitioners. In fact, the son of the petitioners had started residing in Patiala with the complainant. At the time of marriage of the complainant, petitioners were residing in Assam. Complainant had also come to Assam after her marriage but thereafter, the petitioners had shifted to Jalandhar. The entire business of the petitioners in Assam was handed over to the husband of the complainant. In fact, the petitioners had disowned their son. The said fact was substantiated from the allegations in the complaint that the petitioner had not gone to see their son in PGI, Chandigarh or Amar Hospital, Patiala, when he had met with an accident on 25.7.2000. Petitioners had only visited their son on 11.9.2001. All the allegations have been levelled in the complaint against the son of the petitioners. Further the impugned summoning order had been passed in violation of the mandatory provisions of Section 202 Cr.P.C. 3. In support of his arguments, learned counsel for the petitioners has placed reliance on the decision of this Court in S.K.Bhowmik vs. S.K.Arora and another 2007 (4) RCR (Criminal) 650, wherein, in para 14, it was held as under:- “Process is issued in this case only on the basis of examination of the complainant and CW-2. This is obviously under Section 200 Cr.P.C. It was done much prior to the date of amendment of Section 202 Cr.P.C. It is seen that no enquiry/investigation is held as is required under Section 202 Cr.P.C. The quashing of the summoning order is sought mainly on the ground that the Magistrate has not held enquiry, which is obligatory. This is obviously under Section 200 Cr.P.C. It was done much prior to the date of amendment of Section 202 Cr.P.C. It is seen that no enquiry/investigation is held as is required under Section 202 Cr.P.C. The quashing of the summoning order is sought mainly on the ground that the Magistrate has not held enquiry, which is obligatory. If the Magistrate had considered the amended Section 202 Cr.P.C., he was bound to hold enquiry/investigation thereunder before issuing process, though this court would not have any power to interfere or to substitute its own discretion over that of a Magistrate. Where Criminal Magistrate is seen to have exercised his discretion judicially, the same may not call for any interference. The defence of the accused is not the factor, which is required to be taken into consideration to call for any interference in the order. Even the irregularity in the procedure under this section, which does not result in miscarriage of justice, may not call for any interference by a court. Whether a prima facie case is made out from the evidence recorded or not, would be a matter within the discretion of the Magistrate. In fact some inadequacy of the enquiry will also not call for any interference. But enquiry or investigation in case where the accused resides beyond his jurisdiction cannot now be wished away being mandatory. In this case, no enquiry or investigation have been held and process, as such, is issued in violation of the mandatory requirement of Section 202 Cr.P.C. and cannot be sustained. Thus, impugned order is accordingly set aside and case is sent back to the Magistrate to examine fresh by adhering to the requirement of Section 202 Cr.P.C.” 4. Learned counsel for the respondents, on the other hand, have opposed the petition. Learned counsel for the complainant has submitted that all the accused, in connivance with each other, had been harassing the complainant. In fact, whereabouts of the son of the petitioners were not known to the complainant. The son of the petitioners was in touch with the petitioners but they were not disclosing his whereabouts to the complainant. 5. The complaint in question has been filed at Patiala, whereas, petitioners are residents of Jalandhar. In fact, whereabouts of the son of the petitioners were not known to the complainant. The son of the petitioners was in touch with the petitioners but they were not disclosing his whereabouts to the complainant. 5. The complaint in question has been filed at Patiala, whereas, petitioners are residents of Jalandhar. Amended Section 202 Cr.P.C. reads as under:- “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”. 6. 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”. 6. Thus, as per the above provision, the Magistrate before taking cognizance of a complaint shall in 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 officer as he thinks fit. 7. In the present case, the case of the petitioners is that they were residing separately at Jalandhar after they had shifted from Assam. In this regard, reliance has been placed by the petitioners on Ration Card (Annexure P-6). Further, learned counsel for the petitioners has placed reliance on the allegations levelled in the complaint itself to strengthen his argument that the petitioners were residing separately and in fact their son was residing in Patiala along with the complainant. A perusal of the complaint reveals that the allegations have mainly been levelled against the son of the petitioners. So far as the petitioners are concerned, the allegation that they had given beatings to the complainant is of 4.9.1997, whereas, the complaint in question had been filed in June, 2010. 8. In the facts and circumstances of the present case, after going through the contents of the complaint, the Magistrate should have ordered an inquiry in terms of Section 202 (1) Cr.P.C. to enable him to verify the involvement of the petitioners in the alleged crime. A perusal of the complaint does not reveal that the complainant had earlier approached the police for the necessary relief. Thus, it prima facie appears that the matter was never inquired by the police. Hence, the police inquiry would have enabled the trial Court to come to a conclusion as to whether the petitioners had also committed the alleged crime. The purpose of amendment in Section 202 Cr.P.C. is that the persons, who are residing outside the jurisdiction of the Court, be not harassed by the complainant by involving them in a criminal offence in a court outside the jurisdiction of their residence. The purpose of amendment in Section 202 Cr.P.C. is that the persons, who are residing outside the jurisdiction of the Court, be not harassed by the complainant by involving them in a criminal offence in a court outside the jurisdiction of their residence. The idea is that in case the Magistrate wants to summon a person as an accused, who is residing beyond his jurisdiction, he should get the enquiry conducted from the police or any other person as he thinks fit to know about the involvement of the said person in the crime. Hence, in the facts and circumstances of the present case, it would be just and expedient to quash the impugned summoning order dated 11.7.2012 (Annexure P-2) and direct the trial Court to pass a fresh order in accordance with law. 9. Accordingly, this petition is partly allowed. The impugned summoning order dated 11.7.2012 (Annexure P-2) is set aside and the trial Court is directed to pass a fresh order in accordance with law after complying with the provisions of Section 202 Cr.P.C.