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2013 DIGILAW 218 (PNJ)

Atma Tubes Products Ltd. v. State of Punjab

2013-02-19

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.179 dated 30.4.2009 (Annexure P-1) under Sections 406, 420 of the Indian Penal Code, 1860 (IPC for short) and the summoning order dated 2.7.2009 (Annexure P-2) under Section 406 IPC. 2. Learned counsel for the petitioners has submitted that initially the matter was duly investigated by the police and the allegations levelled by the complainant were found to be false. Learned Magistrate, while passing the summoning order, had failed to comply with 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. 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. 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 respondent No.3, on the other hand, has submitted that the complainant had been successful in establishing his case by leading evidence in support of his complaint. Hence, the summoning order was liable to be upheld. 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. (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”. 5. Thus, As per Section 202 Cr.P.C., 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. 6. In the present case, initially a complaint was filed by respondent No.3 before the police in December, 2005. A copy of the said complaint is Annexure P-3. Reply was submitted to the said complaint by petitioner No.2 and the said reply is Annexure P-4. The matter was investigated and vide inquiry report dated 17.3.2006 (Annexure P-5), it was opined that the matter relates to business and commercial transaction between the parties and needs no interference of police. Both the parties could file civil cases against each other and could make their relevant recoveries from each other. 7. The Senior Superintendent of Police vide Annexure P-7 dated 17.4.2006 also observed after going through the enquiry report prepared by Incharge, Economic Wing (Annexure P-6) that a perusal of the entire record revealed that the dispute between the parties was regarding business transaction and parties could settle their matter by way of rendition of accounts and no police action could be taken in this regard. Thereafter, the complaint in question (Annexure P-1) was filed by respondent No.3 on 16.4.2009. The complainant led its preliminary evidence in support of the complaint. Learned Magistrate vide impugned order dated 2.7.2009 (Annexure P-2) ordered the summoning of the petitioners to face the trial qua commission of offence punishable under Section 406 IPC. Petitioners are residents of District Mohali and Chandigarh. The complainant led its preliminary evidence in support of the complaint. Learned Magistrate vide impugned order dated 2.7.2009 (Annexure P-2) ordered the summoning of the petitioners to face the trial qua commission of offence punishable under Section 406 IPC. Petitioners are residents of District Mohali and Chandigarh. The impugned summoning order has been passed by Judicial Magistrate, Ludhiana. 8. In the present case, in case the Magistrate had taken recourse to Section 202 (1) Cr.P.C., it would have enabled it to come to know as to whether the petitioners had 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 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 2.7.2009 (Annexure P-2) and direct the trial Court to pass a fresh order in accordance with law as the Magistrate would have been in a position to know about the police proceeding if he had resorted to Section 202 (1) Cr.P.C. The Magistrate could have then considered the said enquiry before passing the summoning order. In the present case, the compliance of provision of Section 202 Cr.P.C. was necessary. Further the Magistrate could have also appreciated as to whether the complaint now filed was within the period of limitation. 9. Accordingly, this petition is partly allowed. The impugned summoning order dated 2.7.2009 (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 provision of Section 202 Cr.P.C.