Purshottam Chaudhary and others vs Sanjay Walia

Sabina, J.—Petitioners have filed this petition u/s 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of criminal complaint No. 268/2007 dated 14.11.2007 titled as "Sanjay Walia versus Purshotam Chaudhary and others" (Annexure P-16) and the summoning order dated 30.10.2008 (Annexure P-17). Learned counsel for the petitioners has submitted that petitioners were employees of Municipal Council Parwanoo and were acting in compliance of judgment passed in Civil Writ Petition No. 1374 of 2006 by High Court of Himachal Pardesh. The property in question was situated within the jurisdiction of Parwanoo. The plea taken by the complainant that the property in question falls within the jurisdiction of district Panchkula is without any basis.

None has appeared on behalf of the respondent.

In the present case, respondent has filed a complaint against the petitioners u/s 323, 452, 427, 341, 380, 120-B, 506 of the Indian Penal Code. Petitioners are residents of State of Himachal Pardesh. The complaint in question has been filed at Panchkula. It has been held by the Apex Court in National Bank of Oman Vs. Barakara Abdul Aziz and Another, wherein it has been held as under:-

The High Court took the view that prima facie the hare allegation of cheating did not make out a case against the accused for issuance of process under Sections 418 or 420 IPC. Further, it was held that the CJM did not follow the procedure laid down u/s 202 Cr.P.C. The High Court held that the Magistrate was obliged to postpone the process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding in a case where the accused is residing beyond the area in which the Magistrate exercises his jurisdiction. The High Court noticed that the accused is a resident of District Dakshin Kannada, Karnataka and hence, the CJM should have followed the procedure laid down in Section 202 Cr.P.C. The High Court, therefore, set aside the order dated 25-2-2-11 issuing the process under Sections 418 and 420 IPC by the CJM, Ahmednagar. Aggrieved by the said order the Bank has come up with this special leave petition. 8. We find no error in the view taken by the High Court that the CJM, Ahmednagar had not carried out any enquiry or ordered investigation as contemplated u/s 202 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 CJM Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated u/s 202 Cr.P.C. before issuing the process. 9. The duty of a Magistrate receiving a complaint is set out in Section 202 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 u/s 202 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 ground for him to proceed further. The scope of enquiry u/s 202 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.

Section 202 Cr.P.C. was amended by the Code of Criminal Procedure (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 which he exercises his jurisdiction.

The notes on clauses for the abovementioned amendment read 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 amendment has come into force w.e.f. 3.06.2006 vide Notification No. S.O. 923(E) dated 21.06.2006.

We are of the view that the High Court has correctly held that the abovementioned amendment was not noticed by the CJM, Ahmednagar. The CJM had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the view taken by the High Court.

Thus, as per Section 202 Cr.P.C., Magistrate is required to 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 before ordering the summoning of accused who are not residing within his jurisdiction.

In the present case, if the Magistrate had resorted to the provisions of Section 202 Cr.P.C., it would have enabled the Magistrate to arrive at a just and fair decision of the case. During inquiry, it would have transpired that the property in question was situated within the limits of Kalka as alleged by the respondent or within the limits of Parwanoo as alleged by the petitioners. A perusal of the impugned order dated 30.10.2008 Annexure P-17 reveals that no inquiry was sought by the Magistrate u/s 202 Cr.P.C. before passing the said order. Accordingly, this petition is partly allowed. The impugned summoning order dated 30.10.2008 is set aside. Magistrate is directed to pass a fresh order, in accordance with law.