Court No. - 42
Case :- APPLICATION U/S 482 No. - 7348 of 2019 Applicant :- Atul Singh And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mrityunjay Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants and learned A.G.A. for the State and perused the entire record.
This application under Section 482 Cr.P.C. has been filed seeking quashing of the entire criminal proceeding as well as impugned order dated 08.01.2019 passed by Additional Chief Judicial Magistrate Ist, Firozabad, District Firozabad in Complaint Case No. 1970 of 2018, under Section 4 D.P. Act, Police Station Narkhi, District Firozabad.
Learned counsel for applicants argued that there was dispute amongst bride and groom, hence marriage could not be performed and this false accusation was levelled; applicants are resident of a place beyond the territorial jurisdiction of Magistrate and as per amendment under Section 202 Cr.P.C. inquiry was must, which could not be conducted by Magistrate, hence this application.
Learned A.G.A. has vehemently opposed the aforesaid prayer.
From the perusal of complaint, it is apparent that it was filed by opposite party No. 2 Shiv Kumar Singh Sisodiya against Atul Singh and six others for offence punishable under Sections 498- A, 420, 406 I.P.C. read with Section 3/4 D.P. Act, P.S. Narkhi, District Firozabad; Magistrate took cognizance, examined complainant under Section 200 Cr.P.C. and his two witnesses under Section 202 Cr.P.C., thereafter, this summoning order was passed, in which applicants have been summoned for offence punishable under Section 4 D.P. Act.
The complaint was with specific allegation that marriage of Km. Yojna with Atul Kumar Singh was fixed; preliminary rituals were performed and cash of Rs.5,00,000/- was given on 17.06.2018 in Faldaan ceremony, blessings were given and date of marriage was fixed, but a telephonic information was given by accused persons that unless a Dzire car is not given Barat will not come on 07.07.2018 and as a result marriage could not be solemnized, even after huge expenses for marriage. This contention is there in statement recorded under section 200 Cr.P.C. as well as under Section 202 Cr.P.C. and the magistrate has passed impugned order on the basis of those evidence.
The factual submissions being argued is not to be analised in this proceeding under Section 482 Cr.P.C. which is inherent power and is to be exercised sparingly as has been propounded by Courts at repeated times in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844, Hamida v. Rashid, (2008) 1 SCC 474, Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 and Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296.
Further, Section 202 Cr.P.C. reads 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."
The amendment inserted by Act No. 25 of 2005 w.e.f. 23.06.2006 provides that Magistrate 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 i.e. Magistrate is not bound to direct for investigation by police rather he has been given option to make inquiry either by himself or to get it investigated by police or any other person written as above.
In present case before issuing process, Magistrate has obeyed this provision and had made inquiry under Section 202 Cr.P.C., in which statements of PW-1 Jagvir Singh and PW-2 Sonpal Singh have been recorded, thereafter, above summoning order was passed, hence on this score too the argument is not to be sustained.
The application is accordingly dismissed. Order Date :- 26.2.2019 NS