(1) Heard Sri B.P. Nigam, learned counsel for the petitioners, learned AGA and perused the record.
(2) Present petition has been filed against the impugned order dated 20.8.2010 passed by learned Additional Chief Judicial Magistrate -Vth, Hardoi in Complaint Case No.4687 of 2010, thereby the petitioners have been summoned under Sections 323, 504, 406, 506 IPC and Section 4 Dowry Prohibition Act to face the trial.
(3) Learned counsel for the petitioners submits that an application under section 156(3) Cr.P.C. was filed by the complainant, which was treated as complaint case. Statement of complainant was recorded under section 200 Cr.P.C. and statements of witnesses were recorded under section 202 Cr.P.C.. Thereafter, learned Magistrate has passed the impugned order wherein not a single word has been mentioned about the prima facie satisfaction of the learned Magistrate for summoning the accused to face the trial.
(4) Learned AGA has opposed the prayer.
(5) It appears that an application under Section 156(3) Cr.P.C. was filed, which was treated as a complaint case. Thereafter, statement of complainant Smt.Anisha Begam was recorded under section 200 Cr.P.C. and statements of witnesses- Afzaal, Ayoon Khan, Istekhar Ali and Bharat Singh were recorded under Section 202 Cr.P.C. Thereafter, learned Magistrate has passed following order:-
i=koyh ds ifj'khyu ls Li'V gS fd i=koyh ij ifjoknh dk /kkjk 200 n0 iz0 la0 dk c;ku ,oa pkj lkf{k;ksa ds /kkjk 202 n0 iz0 l0 ds c;ku rFkk ifjoknh dk 'kiFk ekStwn gS A lkf{k;ksa ds c;ku ,oa izdj.k ds voyksdu ls ifjoknh ds dFkkud dh HkyhHkkafr iqf"V gksrh gS A vr% vfHk;qDrksa dks ryc djus dk v/kkjk i;kZIr gS A vkns'k ifjoknh }kjk xokgku dh lwph nkf[ky djus ds mijkUr vfHk;qDrx.k egcwc] ykyw[k] vk;wc] ;kdwc] lyhe] Jherh crqYyk] etgch] gqluk o Jherh lyhe dks Hkk0 n0 fo0 dh /kkjk 323] 504] 406 o 506 o 4 ngst izfr0 vf/k0 ds varxZr ryc fd;k tkrk gS A fnukad 29-09-2010 dh frfFk fu;r dj vfHk;qDrksa ds fo:) lEeu tkjh gksa ifjoknh vko';d iSjoh vanj lIrkg djs A ,0 lh0 ts0 ,e0 gjnksbZ (6) In the case of Sonu Gupta versus Deepak Gupta (2015) Vol.3 SCC 424, it was held by the Hon'ble Apex Court that :-
"At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. (Para 8) "
(7) In a recent judgment delivered by Hon'ble the Apex Court on 14.12.2016 in Criminal Appeal No.1225 of 2016 (arising out of SLP(Crl.) No.9318 of 2012) Abhijit Pawar vs. Hemant Madhukar Nimbalakar & Anr. It was held that the admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words that ''and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provisions casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.
(8) Referring the case law in Vijay Dhanuka vs. Najima Mamtaj (2014) 14 SCC 638;
"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.
12. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.6.2006. 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."
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."
(9) In Mehmood UI Rehmand vs. Khazir Mohammad Tund (2016) 1 SCC (Cri) 124; it was held as under :
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.
22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment." Emphasis added. "
(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:
"14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry " has been defined under Section 2(g) of the Code, the same reads as follows:
"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,"
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."
(11) In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 CrPC. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is a serious matter affecting the dignity self-respect and image in the society. A process of criminal court cannot be made a weapon of harassment.
(12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law.
(13) Consequently, impugned order deserves to be quashed and is accordingly quashed.
(14) Petition is allowed. Learned Magistrate is hereby directed to pass a fresh order in the light of observations given in the body of judgment.
(15) It is expected that the learned Magistrate shall pass a fresh order within a period of four week from the date a certified copy of this judgment is produced before him.
Order Date :- 20.12.2016 [Anil Kumar Srivastava-II,J.] Subodh/-