Heard learned counsel for the applicants and the learned A.G.A. for the State.
By the present application, the applicants, who are husband, father in law and mother in law of the complainant (opposite party no.2), have sought quashing of the proceedings of Complaint Case No.48 of 2013 pending in the Court of Judicial Magistrate, Orai, District Jalaun, under Section 498-A, 323, 506 I.P.C. and Section ¾ of D.P. Act, P.S. Kotra, District Jalaun.
A perusal of the complaint, and paragraph 4 in particular, disclose the involvement of the applicants in commission of the offences for which they have been summoned. There is an injury report also to support the allegations. The learned Magistrate after taking cognizance on the complaint proceeded to hold an inquiry by recording statement of the complainant under section 200 and of the witnesses under section 202 Cr.P.C. to ascertain whether or not there is sufficient ground to proceed against the accused. After considering the allegations, the injury report and the statements recorded under sections 200 and 202 CrPC, the learned magistrate recorded satisfaction with regards to existence of a prima facie case to proceed against the applicants and, accordingly, summoned the applicants for offences punishable under Sections 498-A, 323, 506 I.P.C. and Section ¾ of D.P. Act.
Challenging the proceedings, the learned counsel for the applicants submitted that as the applicants, who are the accused, reside outside the jurisdiction of the Court, where cognizance has been taken, therefore, before issuing process the learned Magistrate ought to have himself inquired or to have directed an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. It has been submitted that by virtue of amendment of sub section (1) of section 202, by Act No.25 of 2005, with effect from 23.06.2006, in the Code of Criminal Procedure, such an inquiry is mandatory and in absence thereof, the order issuing process stands vitiated. In support of the said submission, reliance has been placed on decisions of the apex court in the case of National Bank of Oman V. Barakara Abdul Aziz: (2013) 2 SCC 488 and K.T. Joseph v. State of Kerala: (2009) 15 SCC 199. The second submission of the learned counsel for the appellant is that in absence of clear and specific allegation against the father in law and the mother in law they ought not to have been summoned by the learned magistrate in view of the decision of the apex court in the case of Geeta Mehrotra & another versus State of UP & another: (2012) 10 SCC 741.
I have considered the submissions of the learned counsel for the applicants and perused the record.
The first submission of the learned counsel for the applicants is completely misconceived, inasmuch as, the learned magistrate has himself held an inquiry by recording statement on oath of the complainant and her witnesses Vinay Mishra and Gaya Prasad, under sections 200 and 202 CrPC respectively, which are on record as Annexure Nos.3, 4 and 5. It is only after recording the statements, and consideration of the same along with injury report, the learned magistrate drew satisfaction with regards to existence of a prima facie case for proceeding against the applicants and has summoned them accordingly.
The term inquiry as contemplated by sub section (1) of Section 202 is a pre-trial inquiry, as would be clear from Section 2 (g) of the Code of Criminal Procedure, which defines inquiry as every inquiry, other than trial, conducted under the Code by a Magistrate or Court. In Hardeep Singh v. State of Punjab: (2014) 3 SCC 92, in para 117.2 of the report, the Constitutional Bench of the Apex Court observed that inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. It was observed that materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In Vasanti Dubey v. State of M.P.: (2012) 2 SCC 731, the apex court, in paragraph 29 of the report, observed that while in a case based on police report, the court while taking cognizance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the FIR, whereas a complaint case requires an enquiry by the Magistrate under Section 200 CrPC if he takes cognizance of the complaint. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Section 200 CrPC. From above, it is clear that recording of statement under Section 200 CrPC or under Section 202 CrPC, is nothing but a part of the pre-trial inquiry. Accordingly, where the magistrate records the statement of the complainant under section 200 CrPC and, if required, of the witnesses under section 202 CrPC and proceeds to consider them, along with other material, if produced, for ascertaining whether a prima facie case is made out to proceed against the accused, and records a satisfaction to that effect, there is sufficient compliance of the amended provisions of sub section (1) of Section 202 of the Code. Process issued to an accused residing out of the territorial jurisdiction of the Magistrate, after following the aforesaid procedure is not vitiated in any manner.
As in the instant case, the process has been issued after recording the statement of the complainant as well as the witnesses as also after recording satisfaction with regards to existence of a prima facie case against the accused, upon consideration of the statements so recorded as also the material brought on record, it cannot be said that there was no compliance of the amended provisions of sub section (1) of Section 202 of the Code of Criminal Procedure.
So far as the second submission of the learned counsel for the applicants is concerned, the same cannot be accepted as there are allegations against all the accused who are husband, father in law and mother in law of the complainant. As the complaint allegations and the statements made in support thereof as also the injury report do make out a prima facie case to proceed against the applicants neither the summoning order nor the consequential proceedings can be quashed. The prayer of the applicant to that extent is therefore rejected.
At this stage, the learned counsel for the applicants submitted that a simple matrimonial discord between husband and wife has been given color of a dowry case. It has been submitted that subsequent to filing of the complaint, the husband (the applicant no.1) filed a petition for restitution of conjugal rights, which was decreed ex parte, thereby disclosing that the complainant had no justifiable cause to live separate. It has been submitted that the complaint allegations are nothing but false.
Be that as it may, the veracity of the allegations cannot be tested at this stage, inasmuch as, at this stage, the allegations are to be taken at their given face value. And since from the complaint allegations and the material in support thereof a prima facie case to proceed against the applicants is made out the proceedings cannot be quashed at the threshold. However, considering the facts and circumstances of the case, it is hereby provided that if the applicants appear /surrender before the court concerned and apply for bail, within a period of four weeks from today, their bail application shall be considered in accordance with law laid down in the case of Amrawati and another Vs. State of U.P.: 2004 (57) ALR 290, decided by a Full Bench of this Court, which has been approved by the Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P.: 2009(3) ADJ 322 (SC).
With the aforesaid observations /directions, the application stands disposed of.
Order Date :- 24.6.2014 AKShukla/-