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2013 DIGILAW 484 (UTT)

Santosh Verma v. Sunil Kumar Gupta

2013-07-23

ALOK SINGH

body2013
JUDGMENT : Alok Singh, J. Present petition is filed assailing the impugned summoning order dated 06.12.2008 passed by Special Judicial Magistrate, 1st, Dehradun in Criminal Complaint Case No. 1097 of 2008 whereby learned Magistrate was pleased to summon the petitioners under Sections 420 and 120-B I.P.C. Undisputedly, petitioners /accused are resident of Kanpur which is beyond the territorial jurisdiction of Special Judicial Magistrate, 1st, Dehradun. Perusal of the impugned summoning order further reveals that learned Magistrate initially reproduced the contents of the F.I.R. and thereafter in one paragraph has observed as under :- “Complainant in his statement recorded under Section 200 Cr. P.C. has repeated the contents of the complaint; statements of Vikas Gupta S/o Jaidev Gupta were also got recorded under Section 202 Cr. P.C.; moreover, in support of the contents of the complaint, complainant has produced documents serial No. 1 to 23; complainant has proved contents of the complaint prima-facie, therefore, there is sufficient ground to summon the accused under Section 120-B and 420 I.P.C.” Hon’ble Apex Court in the case of National Bank of Oman Vs. Barakara Abdul Aziz and another reported in (2013) 2 SCC 488 has held as under :- “8. We find no error in the view taken by the High Court that the C.J.M. Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 of the Cr. P.C. 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 C.J.M. Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 of the Cr. P.C. before issuing the process. 9. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr. P.C. 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 of the Cr. 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 of the Cr. P.C. 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 grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr. P.C. 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 our; 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 of the Cr. P.C. was amended by the Cr. P.C. (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 jurisdiction” The notes on clauses for the above-mentioned amendment read as follow: “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 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 amendment has come into force w.e.f. 23.6.2006 vide notification No.S.O.923 (E) dt.21.6.2006.” Hon’ble Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited (2013) 4 SCC 505 has held as under :- “Summoning of the accused in a criminal case is a serious matter. Hence the criminal law cannot be set into motion as a matter of course. India Infoline Limited (2013) 4 SCC 505 has held as under :- “Summoning of the accused in a criminal case is a serious matter. Hence the criminal law cannot be set into motion as a matter of course. 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 Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. In the present case, in the summoning order the Magistrate has not recorded his satisfaction about a prima facie case as against Respondents 2 to 7 and the role played by them.” In view of the dictum of Hon’ble Apex Court, the summoning order of the Magistrate must reflect that he has applied his mind to the facts of the case and law applicable thereto. Magistrate must record his satisfaction about the existence of prima-facie case on the basis of discussion of complaint case and evidence produced on the record. If accused is residing beyond the territorial jurisdiction of the Magistrate, enquiry shall be held by the Magistrate himself or investigation by the police or by the other competent person shall be ordered to find out truth in the averments made in the complaint before issuing process to the accused. Scope of enquiry or investigation contemplated under Section 202 of the Code is limited to find out prima-facie case from the point of view of the complainant, on the material placed by the complainant to record satisfaction before issuing process. Investigation under Section 202 of the Code is different from the investigation under Section 156 of the Code. In the present case, learned Magistrate neither held any inquiry as contemplated under Section 202 Cr. P.C. nor made any discussion to record his satisfaction about the prima-facie case justifying the summoning. Therefore, impugned summoning order does not stand in the eyes of law. Consequently, petition is allowed. Impugned order passed by the learned Judicial Magistrate is quashed. Matter stands remitted on the file of learned Magistrate. Learned Magistrate shall hold fresh inquiry and shall pass order afresh after hearing the learned counsel for the complainant. Therefore, impugned summoning order does not stand in the eyes of law. Consequently, petition is allowed. Impugned order passed by the learned Judicial Magistrate is quashed. Matter stands remitted on the file of learned Magistrate. Learned Magistrate shall hold fresh inquiry and shall pass order afresh after hearing the learned counsel for the complainant. It is made clear that accused shall not be heard by the learned Magistrate at the pre summoning stage as held by the Hon’ble Apex Court in the case of Manhari bhai Mulji bhai Kakadia and another Vs. Shailesh bhai Mohan bhai Patel and others reported in (2012) 10 SCC 517 . Complainant shall appear before the learned Magistrate on 12th August, 2013 for further proceedings in accordance with law.