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2014 DIGILAW 453 (UTT)

Pramod Thukral v. Mohammad Hanif

2014-10-10

ALOK SINGH

body2014
Judgment : Present petition is filed assailing the order dated 1.10.2014 passed by Judicial Magistrate, 1st, Rudrapur, District Udham Singh Nagar in Criminal Case No. 2119 of 2008, whereby learned Magistrate was pleased to issue non-bailable warrant against the accused/petitioner, herein. 2. Vide order dated 29.11.2008, Judicial Magistrate, Rudrapur, Udham Singh Nagar was pleased to summon the petitioners (accused) on a private complaint for the offences punishable under Section 406, 504 and 506 IPC. Order dated 29.11.2008 was challenged before this Court in C-482 No. 304 of 2009. C-482 No. 304 of 2009 was allowed, vide judgment dated 6.8.2013, Annexure No. 2 to this petition. This Court, while placing reliance on the judgment of Hon’ble Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited (2013) 4 SCC 505 has held that – “perusal of the impugned order (29.11.2008) would reveal that learned Magistrate has made absolutely no discussion to find out the prima facie case justifying the summoning of the accused. The impugned order seems to have been passed in a routine manner. Therefore, impugned order does not sustain in the eyes of law. Petition is allowed. Complaint stands restored on the file of learned Magistrate. Learned Magistrate after holding further fresh inquiry as he deems fit may pass appropriate order afresh. Petitioners need not remain present before the learned Magistrate at summoning stage. Complainant shall appear before the learned Magistrate on 31st August, 2013.” 3. Perusal of the ordersheet of the Trial Court reveals that thereafter vide order dated 31.8.2013, learned Judicial Magistrate was pleased to issue notices to the complainant as well as the accused/petitioners, herein, asking them to remain present on 23.9.2013. Ordersheet further reveals that on 1.10.2014 accused (petitiioeners) were not present, therefore, non-bailable warrants were issued against the accused/petitioners, herein. 4. It seems that learned Trial Magistrate did not care to read judgment passed by this Court dated 6.8.2013 in C-482 No. 304 of 2009, whereby summoning order was quashed and learned Magistrate was directed to hold fresh inquiry, as he deems fit, before passing orders afresh on the complaint. This Court in judgment dated 6.8.2013 passed in C-482 No. 304 of 2009 had specifically directed that accused need not remain present before the learned Magistrate at the summoning stage. This Court in judgment dated 6.8.2013 passed in C-482 No. 304 of 2009 had specifically directed that accused need not remain present before the learned Magistrate at the summoning stage. Even then, learned Magistrate without passing any summoning order afresh directed to issue notice to the accused as well as complainant vide order dated 31.8.2013 and was further pleased to issue non-bailable warrant on 1.10.2014. 5. Mr. Raman Kumar Sah, learned Deputy Advocate General, submitted that it seems that learned Magistrate wanted to hold inquiry before passing the summoning order afresh, as directed by this Court vide judgment dated 6.8.2013. He further contends that learned Magistrate is competent to call for the accused for the purpose of holding inquiry as required by Section 202 of the Code of Criminal Procedure. 6. Section 202 CrPC reads as under : “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, 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.” 7. (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.” 7. What would be the meaning of ‘inquiry’ as provided under Section 202 CrPC has been explained by Hon’ble Apex Court in the case of National Bank of Oman Vs. Barakara Abdul Aziz and another reported in (2013) 2 SCC 488 , which reads 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.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 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. 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 whichhe 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.” 8. In view of the judgment of Hon’ble Apex Court in the case of National Bank of Oman (supra), it can very well be said that scope of inquiry or investigation as 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. If Magistrate records his satisfaction about existence of prima facie case having discussed entire material made available before him, then it can very well be said that he has held inquiry as required under Section 202 of CrPC. 9. Hon’ble Apex Court in the case of Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others reported in (2012) 10 SCC 517 , has held that accused shall not be heard by the learned Magistrate at the pre-summoning stage. Therefore, order of the Magistrate issuing notice to the accused at the pre-summoning stage and thereafter issuing the non-bailable warrant is absolutely without jurisdiction. 10. Therefore, petition is allowed. Impugned order issuing non-bailable warrant is hereby set aside. Learned Magistrate is directed to proceed afresh with the complaint strictly as directed by this Court, vide judgment dated 6.8.2013, rendered in C-482 No. 304 of 2009. 11. 10. Therefore, petition is allowed. Impugned order issuing non-bailable warrant is hereby set aside. Learned Magistrate is directed to proceed afresh with the complaint strictly as directed by this Court, vide judgment dated 6.8.2013, rendered in C-482 No. 304 of 2009. 11. Let copy of this judgment be circulated to all the Judicial Officers posted in the State of Uttarakhand for information.