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2023 DIGILAW 386 (UTT)

Vikas Chaturvedi v. State of Uttarakhand

2023-07-04

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The grievances of the applicants to the present C482 Application are as against the summoning order dated 17.09.2022, which has been issued in a Complaint Case No. 1214 of 2020, Sujata vs. Vikas Chaturvedi and Others, wherein they have been summoned to be tried for the offences under Sections 498A, 323 of IPC and Section 3/4 of Dowry Prohibition Act. 2. Precisely, it is contended by the learned counsel for the applicants that respondent No. 2, herein, had initially filed a complaint on 11.06.2019 before the Senior Superintendent of Police, with regard to certain set of allegations leveled against the present applicants, and thereafter, the respondent had lodged a complaint under Section 156(3) of CrPC, by way of Criminal Complaint Case No. 1214 of 2020, Sujata vs. Vikas Chaturvedi and Others, pertaining to the allegations of atrocities; which stood instituted which were being exercised by the present applicants before the Court of Additional Chief Judicial Magistrate, Rudrapur, District Udham Singh Nagar. 3. While putting a challenge to the order of summoning dated 17.09.2022, as it has been passed by the learned Additional Chief Judicial Magistrate, Rudrapur, District Udham Singh Nagar, the learned counsel for the applicants has argued that there are serious procedural lapses on account of the non-compliance of the provisions contained under sub-Section (1) of Section 202 of CrPC, for the reason being, that the present applicants, since being the residents of Uttar Pradesh, the necessary compliance under Section 202 of CrPC, ought to have been made since they are residing outside the territorial jurisdiction of the Court, which has taken the cognizance. 4. In order to answer the argument, as extended by the learned counsel for the applicants, pertaining to the noncompliance of the provisions contained under Section 202 of CrPC, the reference of the provisions contained under Section 202 of CrPC themselves become necessary, which is extracted hereunder: “202. 4. In order to answer the argument, as extended by the learned counsel for the applicants, pertaining to the noncompliance of the provisions contained under Section 202 of CrPC, the reference of the provisions contained under Section 202 of CrPC themselves become necessary, which is extracted hereunder: “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. (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.” 5. The provisions contained under Section 202 of CrPC is only an enabling provision which is available to the Court to decide, as to whether summon is required to be issued to the accused persons, who are the residents outside the territorial jurisdiction of the Magistrate concerned or not. The provisions contained under Section 202 of CrPC is only an enabling provision which is available to the Court to decide, as to whether summon is required to be issued to the accused persons, who are the residents outside the territorial jurisdiction of the Magistrate concerned or not. The enabling provision, which has been incorporated under Section 202 of CrPC, is only to facilitate the Court to arrive at a logical conclusion as to whether the summons are at all required to be issued, because even otherwise, without conducting an inquiry as contemplated under Section 202 of CrPC, if the summons are issued or if they are likely to be issued to the residents of outside the territorial jurisdiction of the Court, it may cause an unnecessary harassment. Section 202 of CrPC itself contemplates various modes of inquiry which is left open to be adopted by the Court for enabling itself to arrive at a conclusion as to whether at all the summons are required to be issued or not. 6. There is no specific modality which has been laid down under Section 202 of CrPC, which provides that inquiry could be conducted by the Court or investigation could be directed to be conducted by the police officer or by any other agency which the Court thinks fit for the purposes of deciding as to whether there are sufficient grounds available for issuing summons to the accused persons. 7. This aforesaid provision contained under Section 202 of CrPC is being misconstrued by the applicants, while putting a challenge to the summoning order dated 17.09.2022 when he has attempted to address the Court in the light of the order sheet which he has annexed with the instant C482 Application, contending therein that initially, when the complaint proceedings were drawn by virtue of the orders passed by the Court at various stages and particularly as referred to, to the order dated 23.02.2022, it has been argued by the learned counsel for the applicants that the said order itself would be inferred in observing that the Court was not confident enough as to whether the summons are at all required to be issued or not, and that is why the report was solicited from the competent police officer as is apparent in Para 3 of the order dated 23.02.2022. 8. 8. This Court should not lose sight of the fact that, this order requiring the necessity of summoning the report from the SHO, that of dated 23.02.2022. In case if no report was submitted by the SHO, that itself did not precluded the trial Court to resort to other modes provided under Section 202 of CrPC for the purposes of conducting an inquiry itself to satisfy as to whether at all the summons are required to be issued or not. Hence, the subsequent order dated 17.09.2022 cannot be said to be in contradiction to the order dated 23.02.2022, where the Court was not confident as to whether at all the summons are required to be issued or not and that is why the report was called, and it is contended that it was not submitted. 9. But, in the order dated 17.09.2022, if the observations made in Para 3 are taken into consideration, this was the recourse which was actually adopted by the Court under the first exception provided under sub-Section (1) of Section 202 of CrPC by conducting an inquiry itself by recording the statement of CW1 Ajay Kumar, CW2 Mr. Manoj Pande as well as it has further been taken into consideration are the various documentary evidences including the complaint submitted to the Senior Superintendent of Police, the report submitted by the Uttarakhand Mahila Aayog, the postal receipts, the medical certificates, as well as the report of the Women Protection Commission. This reference of the documents for the purposes of recording its satisfaction to satisfy the ingredients under sub-Section (1) of Section 202 of CrPC was sufficient enough for compliance of Section 202 of CrPC. 10. This reference of the documents for the purposes of recording its satisfaction to satisfy the ingredients under sub-Section (1) of Section 202 of CrPC was sufficient enough for compliance of Section 202 of CrPC. 10. The interpretation, as given by the learned counsel for the applicants, that as if at the stage under sub-Section (1) of Section 202 of CrPC, the applicant was required to be summoned and examined for the purposes of enabling the Court to arrive at a conclusion as to whether at all the summons are required to be issued or not, is absolutely a misconceived notion because at the stage under sub-Section (1) of Section 202 of CrPC, this Section is exclusively an enabling provisions for the Court to arrive at a conclusion to justify the summoning order; it doesn’t entail a detailed trial to be conducted by the Court after recording the statement or cross examination of the accused persons or other witnesses which has been referred to in the summoning order. 11. There is another aspect which has to be taken into consideration, that is, the provisions contained under sub-section (1) of Section 202 of CrPC, the provision basically intends only for the purposes to avoid an unnecessary harassment of an accused person to be summoned who is the resident outside the territorial jurisdiction of the Court. The resort to the recourse under sub-Section (1) of Section 202 of CrPC is not a weapon or a tool which could be utilised by an accused person to contend that the summoning order did not satisfy the conditions contained under sub-Section (1) of Section 202 of CrPC, particularly, in the instant case when the said fact stands established by the findings recorded in Para 3 of the summoning order dated 17.09.2022. 12. The aforesaid principle as to what would be the scope under sub-section (1) of Section 202 of CrPC was dealt with by the Hon’ble Apex Court in a judgment, as reported in Manharibhai Mujlibhai Kakadia and Another vs. Shaileshbhai Mohanbhai Patel and Others, 2012 (10) SCC 517 and particularly the reference may be had to paragraphs 20 and 46 of the said judgment, which are extracted hereunder: “20. Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry Under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint Under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate Under Section 202. The legal position is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal vs. Dattatraya Dulaji Ghadigaonker and Another, MANU/SC/0059/1960 : (1961) 1 SCR 1 with reference to Section 202 of the Code of Criminal Procedure, 1898 (corresponding to Section 202 of the present Code) held that the inquiry Under Section 202 was for the purpose of ascertaining the truth or falsehood of the complaint, i.e. for ascertaining whether there was evidence in support of the complaint so as to justify the issuance of process and commencement of proceedings against the person concerned. *** *** *** 46. The legal position is fairly well-settled that in the proceedings Under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs 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. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process Under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.” 13. In fact, in a nutshell, the aforesaid judgment of the Hon’ble Apex Court has observed that it is only an information which has to be imparted to the Court for its judicious application of mind to satisfy the conditions contained under Section 202 of CrPC and it should not act as a defense available to the accused person; to put a challenge to the summoning order in order to test its veracity depending upon the level of inquiry which is required to be conducted by the Court at the stage of sub-section (1) of Section 202 of CrPC. 14. With respect to the observations made in Para 20 of the aforesaid judgment, it has been observed that in reference to a judgment as reported in Vadilal Panchal vs. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113 the Hon’ble Apex Court has observed that the purpose of Section 202 of CrPC is to ascertain the truth or falsehood of the complaint for ascertaining whether there was a sufficient evidence available in support of issuance of the summoning order. 15. In view of the observations made in Para 46 of the said judgment, which has been extracted above, it has specifically laid down that at the stage when the Court takes steps in furtherance of the proceedings under Section 202 of CrPC, “accused or suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of the process, the accused cannot claim a right of hearing.” 16. It’s only a prima facie opinion, which has to be drawn by the Court or recording its own satisfaction. Hence, it cannot be a case as it has been argued by the learned counsel for the applicants that the applicants were required to be heard and the satisfaction recorded by the Court in Para 3 of the summoning order doesn’t satisfy the test as provided in sub-section (1) of Section 202 of CrPC. 17. Almost on a similar frame work, the Hon’ble Apex Court in yet another judgment as reported in Mohd. Yousuf vs. Smt. Afaq Jahan and Another, 2006 (1) SCC (Cri.) 460 has almost laid down the common principles as to what would be the governing parameters for the purposes of adherence of the conditions provided under Section 202 of CrPC for the purposes of summoning of an accused person, who is the resident of outside the territorial jurisdiction of the Court. The relevant principles have been laid down by the Hon’ble Apex Court in Paras 9 & 10 of the said judgment, which are extracted hereunder: “9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. “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.” 10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.” 18. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.” 18. In fact, the said principle, as laid down in the aforesaid paras, once again reiterates the fact that such investigation as contemplated under sub-section (1) of Section 202 of CrPC is for the purposes of taking of cognizance of an offence, it doesn’t require a follow up procedure envisaged under Chapter XV of the Code. The magnitude of investigation required to be carried would be de-hors to the magnitude of the procedure contemplated under Chapter XV of the Code of Criminal Procedure. 19. In view of the aforesaid, since this Court being satisfied, that the observations made in Para 3 of the summoning order would be falling well within the ambit of sub-Section (1) of Section 202 of CrPC, coupled with the fact, that it is not a scope left open for the applicants to put a challenge to the deficiencies of investigation conducted by the Court under sub-section (1) of Section 202 of CrPC, which is being prohibited to be challenged by the accused person, the instant C482 Application, preferred by the applicants as against the summoning order dated 17.09.2022, lacks merit and the same is accordingly dismissed.