JUDGMENT : 1. Heard Sri Vashu Deo Mishra, learned counsel for the applicant, Sri Anirudh Kumar Singh, learned AGA for the State and perused the record. 2. The instant application under Section 482 Cr.P.C has been instituted, for quashing of the entire proceedings of complaint Case No. 07 of 2021, under Sections 406, 504, 506 IPC, Police Station-Manikpur, District Pratapgarh as well as the summoning order dated 28.10.2021 passed by Additional Chief Judicial Magistrate, Kunda, District Pratapgarh. 3. Factual matrix of the case is that the complainant who is a managing partner of Anuna Education Pvt. Ltd, had entered into an agreement with the complainant’s “NSQF Franchisees”. As per the agreement, the complainant has accorded training to the students under the scheme namely Prime Minister Kaushal Vikas Yojana (P.M.K.V.Y.), which runs under the National Skill Development Corporation (N.S.D.C.). The complainant had served but the applicant’s company did not pay the full wages as was required to be paid as per terms and conditions of said scheme. Being aggrieved, an application under Section 156(3) Cr.P.C. was instituted before the Magistrate, wherein a date was fixed on 08.12.2020. On 8th February, 2021 it was treated as complaint case for recording statement of complainant under Section 200 Cr.P.C. 4. The statement of the complainant was recorded under Section 200 Cr.P.C. and the statement of witnesses namely Sanjay Kumar and Manoj Kumar were also recorded on 8th March 2021. Allegedly the present applicant resides outside the territorial jurisdiction of the Magistrate concerned and complainant itself arrayed the present applicant as respondent by transcribing the address, which is outside the territorial jurisdiction of the Magistrate concerned. 5. The submission of learned counsel for the applicant is that the mandate of Section 202 Cr.P.C. is very specific with regard to the provisions that as soon, a complaint comes before a Magistrate, he will enquire or pass an order for an investigation, if the accused is residing outside the territorial jurisdiction of the Court concerned. 6. Provisions of Section 202 Cr.P.C. is read as under:- 202. 6. Provisions of Section 202 Cr.P.C. is read 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 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. Learned counsel for the applicant has drawn attention towards an amendment named as Code of Criminal Procedure (Amendment) Act, 2005 (Central Act 25 of 2005), which came into force w.e.f. 23rd June 2006. He submits that in fact the intent of legislature is to put safeguard to proposed accused, who is not residing in territorial jurisdiction of the Court concerned. Learned counsel for the applicant has drawn attention towards an amendment named as Code of Criminal Procedure (Amendment) Act, 2005 (Central Act 25 of 2005), which came into force w.e.f. 23rd June 2006. He submits that in fact the intent of legislature is to put safeguard to proposed accused, who is not residing in territorial jurisdiction of the Court concerned. While the enactment/amendment, the legislature found that false complaints are being filed against the persons residing at far off place, simply with a view to harass them and in order to see that innocent persons are not harassed by unscrupulous and unwanted 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 for the 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 prospective accused. 8. Adding his argument, the learned counsel for the applicant further submits that in fact the Hon'ble Apex Court in the case of National Bank of Oman vs. Barakara Abdul Aziz, (2013) 2 SCC 488 , has very specifically held that the outside territorial jurisdiction, a Magistrate receiving complaint, follow the due procedure provided under Section 202 of Cr.P.C. (Act 2005). Extract of the judgment reads as under: “and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction” Further the note on clause for abovementioned amendment was also taken into consideration which is read as follows; “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 sub-sections (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire in to 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 proceedings against the accused” 9. Further contention of learned counsel for the applicant is that Hon'ble Apex Court, after considering abovesaid amendment, held that since the accused was residing outside the jurisdiction of CJM Ambedkar Nagar but the Magistrate did not acknowledge the provisions aforesaid and passed the orders and thus the High Court has rightly quashed the proceeding of complaint as the Magistrate without considering and taking into account the aforesaid amended portion of the Act had proceeded in the matter. He added that the case of the present applicant is squarely covered with the ratio of the above judgment. 10. Learned counsel appearing for the applicant further placed reliance upon the case of Pawan Kumar Yadav and other vs State of U.P. and other reported in 2014 (1) JIC 221 (All)(LB), wherein it has been settled that if Magistrate decides to order for investigation, the person to whom, investigation is entrusted, should be clearly mentioned by giving a reasonable time to complete the investigation. 11. He submits that from perusal of the aforesaid finding, it is clear from the mandate of Section 202(1) Cr.P.C. after amending of the Cr.P.C., the Magistrate, prior to issuance of any process, has to look into that whether respondent and the complainant are residing in his territorial jurisdiction or not. 12. Further placing reliance on, the case of Pepsi Foods Limited and another vs. Special Judicial Magistrate and others reported in 1998 SCC (Crl) 1400 has drawn attention towards paragraph 28, which is extracted as under; “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 13. Referring the abovesaid judgment, he added that ratio, which has been upheld in para 28 of the judgment is to the effect that the criminal cases are always having serious far-reaching consequences and as a matter of course, no criminal proceeding can be set into motion. Summoning of the accused must reflect in the order itself and the Magistrate has to be careful in consideration and may question the complainant and witness to alleged answer to find out the fact. 14. He further contended that there is nothing on record, which reflects that the Magistrate has considered the fact with regard to the territorial jurisdiction. He next submits that since it is up to the Magistrate, while taking the note of the mandate of Section 202 (1) Cr.P.C., to inquire or to direct the investigation and to reach out to the fact that the respondent of the said complaint resides outside the territorial jurisdiction or not. 15. Concluding his argument he submits that from bare perusal of the order dated 28.10.2021 and the statements of the complainant as well as the witnesses, recorded by the learned Magistrate, it reveals that while coming to the conclusion for issuance of process, learned Magistrate shall inquire into the case himself or direct for any investigation to be made by police officers and thus, he has violated the mandate of provision of Section 202(1) Cr.P.C. and, as such, the order dated 28.10.2021 is not sustainable in the eyes of law. 16. On the other hand, learned AGA vehemently opposed the contention and prayer made aforesaid and submits that in fact the process under Section 202 Cr.P.C. is itself an inquiry, as has been held by the Apex Court in several decisions. 16. On the other hand, learned AGA vehemently opposed the contention and prayer made aforesaid and submits that in fact the process under Section 202 Cr.P.C. is itself an inquiry, as has been held by the Apex Court in several decisions. In support of his contention, he has placed reliance on the decision in the case of Udai Shankar Awasthi vs State of U.P. Manu/SC/0018/2013: 2013 (2) SCC 435 , the ratio thereof is extracted as follows: “It is clear that if a prospective accused resides outside the territorial jurisdiction of the Magistrate, the compliance of provisions of Section 202 (1) Cr.P.C. is mandatory before issuance of any process against the prospective accused persons, however, as stated earlier, the examination of witnesses by Magistrate under Section 202 Cr.P.C. also falls within the realm of such inquiry.” 17. He submits that in fact it has been held that the proceeding under Section 202 Cr.P.C. is an inquiry as per the definition held by the Hon’ble Apex Court. He also stated that in fact there is no separate inquiry required outside the purview under Section 202 Cr.P.C. He submits that there is no specific inquiry required under any provision of the Cr.P.C., so far as the mandate of Section 202 is concerned. 18. Learned counsel for the applicant has also placed reliance upon the decision rendered in the case of Vijnay Dhanuka vs Najima Mamtaz reported in MANU/SC/0251/2014. He mainly placed reliance on paragraph 11 and 12 of the said judgment and the same are extracted as under; 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. 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. 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.” 12. 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. 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. 19. 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. 19. He submits that while deciding the aforesaid issue the Hon’ble Apex Court has quoted the words “and shall” , in case where the accused residing beyond area exercise his jurisdiction was inserted vide amendment in Code of Criminal Procedure known as (Central Act 25 of 2005) w.e.f. 23rd June 2006. The aforesaid intention of the legislature was essential to the fact that no false complaint is filed against the person to harass them. 20. He further place reliance on the decision in the case of Manish Kumar Yadav and ors vs State of U.P. and others decided in Application u/s 482 No. 1262 of 2020 decided on 14.05.2020 and has drawn attention of Para 17 of the judgment. The same is extract as under; “17. The next question for consideration is, what does "enquiry" means. The expression has been defined in Section 2(g) of the Code, which means, every enquiry, other than trial, under this code by a Magistrate or "Court." It is evident from the aforesaid provision, every enquiry other than trial conducted by Magistrate or a court is an enquiry, no specific mode or manner is provided viz; 201(1) Cr.P.C. The enquiry envisage U/s 202 Cr.P.C., the witnesses are examined whereas U/s 200 Cr.P.C. examination of complainant is necessary with the option of examining of witnesses present, if any. This exercise by the Magistrate with the sole objective and purpose for deciding whether or not there is sufficient grounds for proceeding against an accused, is nothing but an enquiry envisage U/s 202 Cr.P.C. The under-line idea is that, before exercising power U/s 203/204 Cr.P.C. it is incumbent upon the Magistrate to took into the allegations made in the complaint, statements recorded U/s 200, 202 Cr.P.C. and if there are witnesses to the incident, then take the help of those witnesses while arriving to a particular conclusion. There cannot be a straight jacketed design or formula in holding the enquiry.” 21. There cannot be a straight jacketed design or formula in holding the enquiry.” 21. He submits that in fact the expression “inquiry” has been defined in Section 2(g) of the Code, which means every inquiry other than trial, under this code by a Magistrate or Court. He has pointed out that no specific mode or manner of inquiry has been provided, so far as Sections 200 and 202 are concerned, he submits that ratio of this judgment is that the inquiry is sufficient so far as the magistrate started a proceeding under Section 202 of the Cr.P.C. Thus submission is that order impugned with the instant application is not erroneous or perverse. 22. This Court has taken into consideration the rival submissions made by learned counsel representing the respective parties and have also gone through the records available. 23. The issue, which emerges for consideration and reflect in this case is as to whether, in view of the provisions contained in Section 202(1) of Cr.P.C., the inquiry by the Magistrate himself or the direction for investigation is mandatory requirement, as soon as the fact borne out before the Magistrate concerned is that the accused is residing outside the territorial jurisdiction of the Magistrate concerned. 24. From bare perusal of the order impugned dated 28.10.2021 as well as the statement recorded under Sections 200 and 202 of Cr.P.C., it emerges that no inquiry has been done by the Magistrate prior to issuance of process and even the Magistrate did not direct the police officer for investigation in the matter. 25. Admittedly, prior to the amendment in Cr.P.C. i.e., before the year 2005, this provision was not in existence but, thereafter, vide an amendment of Act No. 25 of 2005, it has been inserted in Section 202(1) of Cr.P.C. This amendment also shows the intent of the legislature that for avoiding the harassment of prospective accused, who is sitting at far-reaching place the instant provision has given effect to. 26. While examining all the proceedings, which was conducted by the Magistrate, there seems to be no whisper regarding the fact that the Magistrate has inquired or get investigated the matter with regard to the fact that applicant is residing outside the territorial jurisdiction or not. 27. 26. While examining all the proceedings, which was conducted by the Magistrate, there seems to be no whisper regarding the fact that the Magistrate has inquired or get investigated the matter with regard to the fact that applicant is residing outside the territorial jurisdiction or not. 27. Emphasis was also laid that since the proceedings under Sections 200 is qua an inquiry proceeding under Section 202 (1) and therefore if a Magistrate has proceeded or inquired during the investigation under Sections 200 and 202 of Cr.P.C., separate proceeding for inquiry or investigation is not required. In the instant matter, neither the Magistrate in the proceeding under Sections 200 and 202 Cr.P.C. tried to inquire regarding the issue of territorial jurisdiction nor he has separately done any inquiry or directed for any investigation. 28. This Court is of the considered opinion that it is a settled law that if a thing is to be done in a manner prescribed in a statue, then that has to be done in the same manner not otherwise. In the instant matter, it is, prima facie, a case where the mandate of provision of Section 202 (1) of Cr.P.C. has clearly been violated and thus, the order impugned is not tenable. 29. Resultantly, the instant application is allowed. The order dated 28.10.2021 passed in Complaint Case No. 07 of 2021 (Shiv Naresh Maurya vs. Amit Iqbal Srivastava and others), is hereby set aside. 30. However, the matter is remitted back to the Magistrate concerned to proceed afresh and pass the order accordingly.