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2018 DIGILAW 873 (ALL)

MOHIT SAHNEY v. STATE OF U. P.

2018-04-11

UMESH CHANDRA SRIVASTAVA

body2018
JUDGMENT : Hon'ble Umesh Chandra Srivastava, J. Applicant-Mohit Sahney and Smt. Pulkit Sahney are before this Court seeking quashing of proceedings of Complaint Case No. 4212 of 2013 (Vishal Kochhad Vs. Pulkit Sahney and others), under Section 406 IPC, P.S. Sector-20, District Gautam Budh Nagar, pending in the court of Additional Chief Judicial Magistrate, IIIrd, Gautam Budh Nagar. 2. Heard Sri Rajesh Pathak, learned counsel for applicants, Gaurav Pundir, learned counsel for opposite party no. 2, learned A.G.A. for State and perused the record. 3. Learned counsel for applicants submitted that order dated 03.4.2014 passed by learned Magistrate in complaint case no. 4212 of 2013 suffers from illegality as he has failed to apply his mind while passing the order. He submitted that to constitute the offence of criminal breach of trust, entrustment or dominion over property said to be misappropriated or converted to own use is must, and since no property was ever entrusted or put under dominion of applicants, no offence under Section 406 IPC can be said to be made out against them. Applicant no. 1 had no concern with locker in any manner and, so far as applicant no. 2 is concerned, locker being in joint name of her and her husband, she operated the same in her own right and took the jewelleries kept therein which were her own, and not belonging to opposite party no. 2. Applicants are being maliciously prosecuted on account of matrimonial dispute of applicant no. 2 with her husband, opposite party no. 2. 4. The learned counsel for applicants further submitted that applicant no. 2 had lodged a non cognizable report, which was latter converted into cognizable one, and had also lodged an FIR against opposite party no. 2 at Mahila Thana in Jaipur and in counter blast thereof the instant complaint was filed with false and frivolous allegations. 5. 2. 4. The learned counsel for applicants further submitted that applicant no. 2 had lodged a non cognizable report, which was latter converted into cognizable one, and had also lodged an FIR against opposite party no. 2 at Mahila Thana in Jaipur and in counter blast thereof the instant complaint was filed with false and frivolous allegations. 5. Learned counsel for applicants further submitted that order impugned in instant application is bad in law as learned Magistrate has passed the same without complying with mandatory provisions of sub-section (1) of Section 202, Cr.P.C. He submitted that sub-section (1) of Section 202, is mandatory and it reads that where an accused in a complaint case is residing at a place beyond the area in which Magistrate exercises his jurisdiction, the Magistrate, on receipt of complaint, shall after examining complaint and the witnesses present, postpone the issuance of process against accused, and direct an inquiry/investigation to be made either by himself or by a police officer or by such other person, as he thinks fit, for the purpose of deciding whether there is sufficient ground for proceeding. He further submitted that, admittedly, applicants and other accused whom learned magistrate has issued process are not the residents of District Gautam Budh Nagar. They are the residents of Jaipur and New Delhi which are not within territorial jurisdiction of magistrate at Gautam Budh Nagar. Therefore, learned magistrate was under legal obligation to get allegations inquired into either by himself or by any police officer or by such other person, as he thought fit, as mandated under sub-section (1), before issuing the process and he having failed to do so, proceedings are liable to be quashed. 6. Per contra, learned A.G.A. for State and learned counsel appearing for opposite party no. 2 submitted that though sub-section (1) reads that in a case where accused is not the resident of an area falling under territorial jurisdiction of Magistrate, authorized to take cognizance in respect of an offence, the Magistrate on receipt of complaint, shall firstly examine the complainant and the witnesses present in court under Section 200 Cr.P.C., and, thereafter, he shall postpone issuing the process and shall direct an inquiry/investigation to be made either by himself or by any police officer or such person as he thinks fit. However, they submitted, holding inquiry before issuing process has been mandated to have check over filing of false and frivolous complaints against persons residing at far off places for harassment. But, where on account of being based on documentary or other evidences, complaint does not seem to be false or frivolous, it appears to be true, Magistrate can directly issue process to accused even residing at far off places without holding inquiry as provided under sub-section (1). They further submitted that it is not necessary that in each and every case where accused are residing at far off places, holding inquiry before issuing process is must, because if it so happens, it would be very difficult to prosecute cases under Negotiable Instrument Act where accused are normally the residents of far off places. 7. Learned A.G.A. and learned counsel for opposite party no. 2 further submitted that in the case in hand applicants are not stranger being brother in law and wife of opposite party no. 2, they are close relative. Though they have been shown to be residents of Jaipur, however, it is stated that applicant no. 2 who is the wife of opposite party no. 2 was residing at latter's house in Gautam Budh Nagar and applicant no. 1 was a frequent visitor to that house. They, thus, submitted that since both applicants were close relative, despite the fact they were residing at Jaipur when complaint was filed, there was no need to hold inquiry in their matter as provided under sub-section (1), and so, if no inquiry was held and they have been summoned straightway after examining the complaint, magistrate has committed no illegality in doing so, so that proceedings may be quashed. 8. In support, they have placed reliance on the judgment of Hon'ble Supreme Court in the case of Vijay Dhanuka ETC Vs. Najima Mamtaj ETC 2014 Law Suit (SC) 223 and National Bank of OMAN Vs. Barakara Abdul Aziz & another, 2012 Law Suits (SC) 886. 9. Hon'ble Apex Court in the above case has held that in complaint cases where accused are the residents of places beyond territorial jurisdiction of Magistrate, holding inquiry under sub-section (1) is mandatory to have check over filing of false and frivolous cases. 10. Hon'ble Apex Court in the case of National Bank of OMAN Vs. 9. Hon'ble Apex Court in the above case has held that in complaint cases where accused are the residents of places beyond territorial jurisdiction of Magistrate, holding inquiry under sub-section (1) is mandatory to have check over filing of false and frivolous cases. 10. Hon'ble Apex Court in the case of National Bank of OMAN Vs. Barakara Abdul Aziz & another has held that if accused in a complaint case is residing out side the jurisdiction of Magistrate, holding inquiry as required under sub-section (1) of Section 202 Cr.P.C. is must. 11. The Apex Court in Sharif-ud-din vs. Abdul Gani, AIR 1980 SC 303 and Lacchmi Narayan vs. Union of India, AIR 1976 SC 714 has laid down the law that whether statutory provision is mandatory or directory depends on the intention of law maker and not on the language used, where a statute prescribes a particular act to be done in a particular manner laying down special consequences or failure to comply with, then it will be mandatory, otherwise it will be directory. 12. Holding inquiry by a Magistrate by himself or by any police officer, as Magistrate thinks fit, has been inserted in sub-section (1) of Section 202, Cr.P.C. by Criminal Procedure (Amendment) Act 2006, w.e.f. 23.06.2006. Prior to this, there was no such provision in the Statute. The reason behind inserting the mandatory provision was that false cases were being filed in bulk against persons residing at far off places for harassment. The purpose behind holding inquiry in respect of accused residing beyond the territorial jurisdiction of Magistrate was to have check over filing of false and frivolous complaints. Intention of law maker was that by holding inquiry by Magistrate himself, or by a police officer, or by such other person as he thinks fit, filing of false complaint case may be checked and it was with regard to accused residing at far off places, and not with regard to those whose cases are based on documentary evidences, or though they are residents of far off places but closely related with complainant, as in such cases and there is a little chance of false implication. Therefore, in such cases, if satisfied, magistrate can straightway issue process against accused residing at far off places even without holding inquiry under sub-section (1), and his decision can not be challenged on account of being violative of mandatory provision. 13. Therefore, in such cases, if satisfied, magistrate can straightway issue process against accused residing at far off places even without holding inquiry under sub-section (1), and his decision can not be challenged on account of being violative of mandatory provision. 13. From the facts of the case in hand it is clear that applicants are not stranger to opposite party no. 2, they are close relative of him. Though, they were not residing within the area of district Gautam Budh Nagar, but they were residing at a far off place in Jaipur, but they being close relative and their case being based on oral as well as documentary evidence, magistrate has committed no illegality in taking cognizance and issuing process against them without holding inquiry under sub-section (1). It is not disputed that locker was operated upon by applicant no. 2 when opposite party no. 2 was in police custody. It is stated that when applicant no. 2 went to bank to operate the locker she was not alone, she was accompanied with by her brother, the applicant no. 1 and her maternal uncle, another accused. Their images are also said to be captured in CC TV cameras installed in the bank. In the circumstances, there seems to be no abuse of process of court by issuing process to applicants without complying with provisions of sub-section (1), as it is not mandatory, but directory only, so far as present case is concerned. Thus, the order passed by learned magistrate is not violative of mandatory provisions of law. Proceedings of complaint case are therefore not liable to be quashed. 14. In the result, application is dismissed.