JUDGMENT : Ashwani Kumar Singh, J. 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the complainant-opposite party No. 2. 2. The present application under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') has been filed for quashing the order dated 13.04.2012 passed by the learned Judicial Magistrate, 1st Class, Jamui in Complaint Case No. 1171 of 2011 whereby he has taken cognizance of the offences punishable under Sections 323 and 504 of the Indian Penal Code and Section 3(1)(vi) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'the Act') and summoned the petitioner to face trial. 3. A typed complaint was filed on 19.12.2011 by the complainant-opposite party No. 2 Bahadur Manjhi of village-Sonpai, P.S. and District-Jamui in the court of Chief Judicial Magistrate, Jamui stating inter alia that he is a labourer and occasionally works at Dhamna Kothi. On 18.12.2011, at 8:00 a.m., the petitioner-accused Kumar Dhirendra Pratap Singh, who being relative of the owner of Dhamna Kothi frequently used to visit his place asked the complainant to take his bag to Tempo stand. On his request, he took his bag with him and when he reached near Zila Parishad office, he found one cycle rickshaw standing there. Thus, he asked the accused to take his bag on rickshaw, as the bag was quite heavy and demanded some money for tea etc., as it was extremely cold. However, the accused started abusing him by calling his caste name 'mushar' and said that his ancestors have served him and he will also have to serve and carry his bag. On protest made by him, the accused assaulted him with shoe on his face and forcefully took him to tempo stand with bag on his head and did not pay him a single farthing and abused him at the tempo stand also. 4. The learned Chief Judicial Magistrate, Jamui made over the complaint case to the court of Judicial Magistrate-1st Class, Jamui in exercise of power conferred under Section 192(1) of the Cr.P.C., fixing 22.12.2011, as the next date. On 22.12.2011, the complainant of the case was examined on oath. 4. The learned Chief Judicial Magistrate, Jamui made over the complaint case to the court of Judicial Magistrate-1st Class, Jamui in exercise of power conferred under Section 192(1) of the Cr.P.C., fixing 22.12.2011, as the next date. On 22.12.2011, the complainant of the case was examined on oath. Apart from the complainant, witnesses to the complaint, namely Sigheshwar Paswan and Gorelal Singh were also examined by the learned Magistrate, whereafter, vide impugned order dated 13.04.2012, the learned Magistrate took cognizance of the offences and summoned the petitioner to face trial. 5. The relevant part of the order dated 13.04.2012 is reproduced hereunder:- 13-04-2012 & okn iqdkjk x;kA ifjoknh dh vksj ls odkyru gkftj fn;k x;kA oknh ds fo}ku vf/koDrk mifLFkr gq,A laKku ds fcUnq ij fo}ku vf/koDrk dks lquk x;kA vfHkys[k ij ifjoknh dk 'kiFk ij c;ku rFkk ifjoknh dks miyC/k izLrqr tkap lk{kh la[;k 1 & flgsa'oj ikloku 2 & xksjsyky flag ds tkWp lk{l dk v/;;u fd;kA ifjoknh dk dFku gS fd ifjokn i= esa ukfer vfHk;qDr us mlls vVSph <qyok;k ,oa ifjoknh ds dgus ij fd fjDlk esa pys tkb;s] ifjoknh dks xkyh xykSp fd;k] ekjihV fd;kA ifjoknh dks dgk x;k fd rqEgkjs cki&nknk us lc fnu csxkjh fd;k gS rqEgsa Hkh djuk gksxkA tkWp lkf{k;ksa usa mlds dFku ds leFkZu djrs gq, dgk gS fd ifjoknh dks lkyk eqlgj] dgdj xkyh xykSp fd;k x;k gSA ifjoknh ,ao tkWp lkf{k;ksa ds lk{; ifjokn i= ds voyksdu ds i'pkr~ U;k;ky; ikrk gS fd ifjokn i= esa ukfer vfHk;qDr ds fo:) Hkk-na-fo- dh /kkjk 323@504 ,ao vuqlwfpr tkfr@tutkfr vf/k- dh /kkjk 3¼Vh½¼vi½¼x½ esa izFke n`"V;k ekeyk lgh izfrr gksrk gSA /kkjkvksa esa vfxze dk;Zokgh fd;s tkus dk vk/kkj miyC/k gS vr% ifjoknh dks funs'k fn;k tkrk gS fd og ,d ekg ds vanj jftLVMZ Mkd ds lkFk lEeu dk visf{kr nkf[ky djsaA visf{kr nkf[ky fd, tkus ij dk;kZy; lEeu fuxZr djsaA fnukad 19-5-12 dks izLrqr djsaA g-@v- U;k- (emphasis mine) 6. Assailing the impugned order dated 13.04.2012, learned counsel for the petitioner submitted that the entire prosecution case is malicious one. He submitted that the complainant has been set up by one of his relatives to frame him in a false and frivolous case. Assailing the impugned order dated 13.04.2012, learned counsel for the petitioner submitted that the entire prosecution case is malicious one. He submitted that the complainant has been set up by one of his relatives to frame him in a false and frivolous case. He contended that his relative Niranjan Kumar Singh is a practicing advocate of Jamui Civil Court whose son Narendra Kumar Singh is a contractor and Managing Director of Jai Maa Kali Construction Pvt. Ltd. Said Narendra Kumar Singh played deception and fraud and cheated Rs. 5,50,000/- from the petitioner, relating to which the petitioner filed both criminal and civil cases against him. He submitted that in the criminal Complaint Case No. 3474(C) of 2012 when summons were issued and served upon Narendra Kumar Singh at Sonpai House, Jamui, instant false case had been instituted against the petitioner by setting up the complainant, who is also a resident of village-Sonpai, Jamui. He submitted that the impugned order has been passed without mandatory inquiry in terms of Section 202(1) of the Cr.P.C. He contended that as the petitioner is a resident of a place, which is beyond the territorial jurisdiction of the Magistrate, an inquiry in terms of Section 202(1) of the Cr.P.C. was obligatory before issuance of summons. In support of his submissions, he has placed reliance on the decisions of the Supreme Court in Vijay Dhanuka vs. Najima Mamtaj, (2014) 14 SCC 638 ; and Udai Shankar Awasthi vs. State of Uttar Pradesh and Another, (2013) 2 SCC 435 . 7. Per contra, learned counsel appearing for the complainant submitted that the so-called relatives of the petitioner are neither complainant nor witnesses to the complainant. He submitted that the complainant is the victim, who has been abused and assaulted by the petitioner in his caste name and the allegations made in the complaint clearly attract the ingredients of the offences under which the learned Magistrate has taken cognizance. He contended that so far as the question of malicious prosecution is concerned, the argument advanced by the learned counsel for the petitioner is imaginary and based on wild hypothesis, which has got no legal value. He contended that in absence of any proof, in this regard, at the initial stage of taking cognizance, this Court should not stifle a legitimate prosecution. He contended that in absence of any proof, in this regard, at the initial stage of taking cognizance, this Court should not stifle a legitimate prosecution. He contended that as far as the question of non-compliance of Sub-section (1) of Section 202 of the Cr.P.C. is concerned, merely a technical ground taken by the petitioner at this stage before this Court cannot be made a ground for terminating a legitimate prosecution in exercise of power under Section 482 Cr.P.C. He submitted that two independent witnesses examined in this case were examined in course of inquiry conducted under Section 202 Cr.P.C. and, thus, the said point is also not available to the petitioner. 8. In reply, learned counsel for the petitioner submitted that from perusal of the impugned order, it would be apparent that a composite order under Sections 190 and 204 of the Cr.P.C. has been passed by the learned Magistrate. He submitted that the impugned order clearly speaks that hearing on point of cognizance was made and it was found that a prima facie case under the provisions of Indian Penal Code and SC & ST Act is made out and, thus, the complainant was asked to deposit requisites for issuance of summons. He contended that the examination of the complainant and witnesses was under Section 200 of the Cr.P.C. and not under Section 202 of the Cr.P.C. He further contended that even on the basis of materials on record, it can be shown that the complaint lodged by the complainant is a gross abuse of the process of the court. He submitted that the complainant in his statement made on oath did not refer the name of caste by which the petitioner called and abused him. The witness No. 1 Sihehswar Paswan stated that the petitioner abused the complainant by calling his caste name as 'chamar' and witness No. 2 Gorelal Singh disclosed that the petitioner abused the complainant by calling his caste name 'mushar'. 9. Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State has adopted the submissions made by the learned counsel for the complainant and submitted that the impugned order passed by the learned Magistrate does not suffer from any illegality. 10. I have heard learned counsel for the parties and perused the record. 11. 9. Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State has adopted the submissions made by the learned counsel for the complainant and submitted that the impugned order passed by the learned Magistrate does not suffer from any illegality. 10. I have heard learned counsel for the parties and perused the record. 11. Having regard to the plea of the malicious prosecution taken by the petitioner, I am of the opinion that no such finding can be recorded by the court at this stage and to that extent the contention of Mr. Jitendra Pandey, learned counsel for the complainant seems to be correct. 12. However, on perusal of the complaint, it would be manifest that the complainant has alleged that he was abused by the petitioner by calling his caste name 'mushar', but in his statement made on oath, he has not whispered that the petitioner abused him by taking his caste name 'mushar'. He has stated about use of certain abusive words in his statement, which are completely missing in the complaint. I further find that in his statement, witness No. 1 Siheshwar Paswan disclosed that the petitioner used abusive word by calling the complainant his caste name 'chamar' whereas witness No. 2 Gorelal Singh disclosed in his statement that the petitioner called the complainant by using his caste name 'mushar'. I further find that though the complainant and witness No. 1 stated that the petitioner had abused the complainant near the Zila Parishad, witness No. 2 stated that the petitioner abused the complainant near tempo stand. 13. I further find that in the complaint, the petitioner is shown to be the resident of Gaya district, which is a place beyond the area in which the learned Magistrate sitting at Jamui was exercising his jurisdiction. 14. In that view of the matter, the compliance of Section 202 of the Cr.P.C. was mandatory before issuance of process against the petitioner. 15. Section 202(1) of the Cr.P.C. reads as under:- "202. 14. In that view of the matter, the compliance of Section 202 of the Cr.P.C. was mandatory before issuance of process against the petitioner. 15. Section 202(1) of the Cr.P.C. 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, [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 Sessions; 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." 16. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.6.2006. The said amendment, in the opinion of the legislature, was essential as false complaints were filed against persons residing at far off places in order to harass them. The note for the amendment reads 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 accused." 17. Prior to the amendment in Section 202 Cr.P.C., the Magistrate was required to record reasons in writing if he wanted to postpone the issue of process. The only change which has been made in Section 202 of the Cr.P.C. after amendment is that the inquiry has been made obligatory in a case where the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction. 18. In order to ascertain as to whether any inquiry in terms of Sub-section (1) of Section 202 Cr.P.C. was held or not in the present case, when I look at the record, I find that the learned Magistrate had passed a composite order under Sections 190 and 204 of the Cr.P.C. In his order dated 13.04.2012, learned Magistrate has clearly recorded that the learned advocate has been heard on the point of cognizance and finding a prima facie case on the basis of statement of complainant and witnesses examined on his behalf offences alleged were made out and thus he directed for filing the requisites so that summons may be issued to the petitioner. I find that the learned Magistrate has not taken note of the aforesaid amendment made under Section 202(1) of the Cr.P.C. and has issued process without holding an inquiry as required in law. The process in this case has been issued immediately after taking cognizance, without postponing the issue of process and without holding any inquiry or investigation, which was mandatory for issuance of process. At best, it can be said that the examination of the complainant and the two witnesses was in terms of Section 200 of the Cr.P.C. and not under Sub-section (1) of Section 202 of the Cr.P.C. 19. As seen above, Section 202 of the Cr.P.C. deals with the provisions relating to steps which a Magistrate has to take after taking cognizance of the offence on the complaint and after recording the statement of the complainant and witnesses present under Section 200 of the Cr.P.C. Under Section 202(1) of the Cr.P.C., the Magistrate is required to hold inquiry or direct an investigation to be made by police officer or any other person in case the accused is residing at a place beyond the area in which he exercises his jurisdiction. Apparently, the mandatory procedure prescribed in law under sub-section (1) of Section 202 Cr.P.C. has not been followed by the learned Magistrate in this regard. 20. In Vijay Dhanuka (supra), while explaining the essence and purpose of the Amendment Act, 2005, the same view has been reiterated by the Supreme court in the following words:- "11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. 12. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" was inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd of June, 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads 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 accused." The use of the expression 'shall' prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate"." (emphasis mine) 21. In Udai Shankar Awasthi (supra), emphasizing the mandatory requirement of Section 202 of the Cr.P.C., the Supreme Court observed in para 40 as under:- "40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provision of Section 202 Cr.P.C. were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases." 22. Considering the material contradictions in the statement of complainant and the witnesses recorded by the learned Magistrate and in view of total non-compliance of the mandatory requirement of sub-section (1) of Section 202 of the Cr.P.C. and in the light of the ratio laid down by the Supreme court in the decisions referred hereinabove, the impugned order dated 13.04.2012 passed by the learned Judicial Magistrate, 1st Class, Jamui in Complaint Case No. 1171 of 2011 cannot be sustained. It is set aside, accordingly. 23. The application stands allowed.