Smt. Kanwaldeep Kaur vs State of Uttarakhand and another

Sharad Kumar Sharma, J.

Section 202 of the Cr.P.C. reads as under :-

“202. Postponement of issue of process. â€" (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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 purposes 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.â€​

The provisions as quoted above contemplate that a Magistrate on the receipt of the complaint, in order to go into its propriety and for taking a

congnizance to the complaint, he shall for the purposes of looking to the veracity of allegation and satisfying itself before issuing the process has a

power vested to resort to the procedure under Section 202 Cr.P.C. In the instant case, the applicants argument is that it is this provision which is

contended to have been violated by the Civil Judge (S.D.)/ACJM, Kashipur, District Udham Singh Nagar while passing the impugned order dated 28th

November, 2017, summoning the present applicant for the alleged commission of offence under Section 494 registered as a Compliant Case, being

Complaint Case No. 3915 of 2017, Sahab Singh Vs. Smt. Kanwaldeep Kaur, in which, she has been summoned by the Court.

The allegations by the respondent husband, as against the present petitioner is that during the subsistence of the first marriage, she has soleminized

second marriage which would be bigamy and the proceedings thereof regarding second marriage and its effect, after being decided against her is

pending consideration in C482 Application before the Allahabad High Court. There had been other collateral proceedings by way of 498-A and 323

IPC as well as the proceedings under Section 31 of the Domestic Violence Act, which has been initiated by the present applicant which is

independently proceeding, with which this Court is not at all presently concerned with. The only issue with which, this Court is presently concerned in

this case is what would be the effect of the impugned order, as to whether the petitioner could be said prima facie accused of Section 498-A or not.

The allegations are that she had solemnized the second marriage with one Mr. Paramjit Singh on 23rd October, 2016 though this fact stand denied by

the present applicant by contending to the contrary.

This is an issue which has to be dealt with by the Trial Court after full fledged independent trial, but, as far as the process is concerned, which is

issued to the applicant by the impugned order dated 28th November, 2017, the learned counsel for the applicant submits that the compliance of Section

202 of the Cr.P.C. is mandatory for the purposes of summoning the applicant in a compliant case.

He places reliance on a judgment rendered in the case of National Bank of Oman Vs. Barakara Abdul Aziz and another reported in (2013) 2 SCC

488, National Bank of Oman.

He makes a reference to para 12 of the said judgment which, he contemplates that in those cases where process has been issued without compliance

of the provision contained under Section 202 Cr.P.C., it would be essential for the High Court to quash the complaint and direct the Magistrate to pass

a fresh order after complying the provision of 202 Cr.P.C. Para 9 to 12 of the said judgment read as under :-

“9. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Code of Criminal Procedure 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

under Section 202 of the Code of Criminal Procedure 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 grounds for him to proceed further. The scope of enquiry under Section 202 of the Code of

Criminal Procedure 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 our; 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 of the Code of Criminal Procedure 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 jurisdiction. The notes on clauses

for the above-mentioned amendment read as follow:

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-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. 23.6.2006 vide notification No. S.O. 923(E) dt. 21.6.2006.

We are of the view that the High Court has correctly held that the above-mentioned amendment was not noticed by the C.J.M. Ahmednagar. The

C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Code of Criminal

Procedure. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view

taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders

following the provisions of Section 202 of the Code of Criminal Procedure. Hence, we remit the matter to the Magistrate for passing fresh orders

uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused

for issuance of process under Section 418 or 420 of the Indian Penal Code. The C.J.M. will pass fresh orders after complying with the procedure laid

down in Section 202 Code of Criminal Procedure, within two months from the date of receipt of this order.

The special leave petition is, accordingly, disposed of.â€​

In the said case, the basic ratio was that for the purposes of issuing the process in a complaint case, the intention of Section 202 Cr.P.C. has to be met

with and the intention of 202 Cr.P.C. is a satisfaction to be reordered by the Court for the purposes of issuing process on a complaint case. In the

instant case, looking to the facts pleaded and documents as also the findings which has been recorded in the impugned order dated 28th November,

2017, considering the prima facie establishment of fact of solemnization of second marriage on 28th October, 2016 and considering the statement of

the witnesses CW-1 Mangat Singh and CW-2 Ranjit Singh under Section 202, the Court had issued the process.

Even as per the language used under Section 202 Cr.P.C., it is an enabling provision for the purpose to facilitate the Magistrate to the manner in which

the cognizance could be taken in a complaint. The purpose of Section 202 Cr.P.C. and the legislative intent is that the Magistrate before he decides to

issue a process, may if the facts and circumstances call for, may satisfy himself as to whether at all the process in a complaint case has to be issued

or not. Provision intends to avoid uncalled for in convenience to the accused of participating in a proceeding which may not be prima facie tenable, for

which, the Magistrate has been vested with the power to conduct an inquiry himself to get it investigated through an agency. Thus, the provisions

cannot be claimed to be enforced as of right by the accused that recourse to Section 202 Cr.P.C. has to be invariably followed in all cases,

irrespective of its facts and circumstances and even in those cases where the offence is prima facie established.

The object of the provision as contained under Section 202 Cr.P.C., this Court is of the view that it has its limited object to be met with to ascertain the

truth or falsehood of the allegation made in the complaint, for which, law has provided with Magistrate to satisfy himself before issuing the process :-

To assess the prima facie for issuing a process.

To enable the Magistrate to consider material placed by the complainant and;

For resolving the question from the exclusive view point of the complainant, without making reference or even adverting to defence of the accused.

Rather from above facts, at the stage of Section 202 Cr.P.C. the accused has no role to claim as of right for an action before the Magistrate issues a

process. In particular, the findings recorded in para 11 and 12 of the impugned judgment read as under :-

“11. Ikz uxr ekeys esa ifjoknh dh vksj ls foi{khx.k dks /kkjk 494] 504] 506] 34 Hkkjrh; n.M lafgrk ds v/khu ryc fd;s tkus dk dFku fd;k x;k gSA

ifjoknh dh vksj ls /kkjk 504] 506] 34 Hkkjrh; n.M lafgrk esa ryc fd;s tkus laca/kh dFku ds ckcr ;g mYys[k fd;k tkuk vkoâ€;d gS fd izâ€uxr ekeys esa

i=koyh ij ,slk dksbZ ekSf[kd o nLrkosth lk{; miyC/k ugha gS ftlds vk/kkj ij foi{khx.k dks bl Lrj ij izFke n`""V;k ?kkjk 504] 506] 34 Hkkjrh; na.M lafgrk

ds v/khu fopkj.k gsrq ryc fd;k tk ldsaA rnuqlkj foi{khx.k /kkjk 506] 506] 34 Hkkjrh; n.M lafgrk ds v/khu fopkj.k gsrq ryc fd;s tkus ;ksX; ugha gSA

tgkW rd ifjoknh dh vksj ls foi{kh ijethr flag o tlfoanj flag dks izâ€uxr ekeys esa /kkjk 494 Hkkjrh; n.M lafgrk esa ryc fd;s tkus laca/kh dFku dk

izâ€u gSaA bl laca/k esa ;g Li’V fd;k tkuk vfuok;Z gS fd izâ€uxr ekeys esa foi{kh ijethr flag o tlfonj flag ds fo:} bl Lrj ij dksbZ ,slk lk{; Hkh

miyC/k ugha gS] ftlds vk/kkj ij dfFkr foi{khx.k dks izâ€​uxr ekeys esa /kkjk 494 Hkkjrh; n.M lafgrk esa ryc fd;s tkus dk vkns’k fn;k tk ldsAâ€​

There happens to be an apparent compliance of Section 202 of the Cr.P.C. As such, this Court finds no error apparent in the impugned order under

challenge.

Hence, the C-482 application is dismissed.