Heard Shri Murli Manohar Srivastava, learned counsel for the applicant, Shri Rao Narendra Singh, learned AGA for the State, Shri Mohammad Askari Ali opposite party no. 1 in person and perused the record.
This application under Section 482 Cr.P.C. has been filed for quashing the order of cognizance dated 27.5.2016 passed by the Chief Judicial Magistrate, Lucknow in Criminal Complaint No. 7693/2015 summoning the petitioner under Section 364/511 IPC alongwith concerned complaint filed by the opposite party no. 1 related to Police Station Hazaratganj, District Lucknow alongwith part of order dated 6.10.2017 passed by Sessions Judge, Lucknow in Criminal Revision No. 417/2017.
Learned counsel for the applicant contended that opposite party no. 1 has cunningly not written the address of the accused person in complaint. Admittedly, applicant is resident of Azamgarh district which is beyond the jurisdiction of concerned Magistrate sitting at Lucknow. In such circumstances, in case of address of applicant was given in the complaint, Magistrate concerned was duty bound to follow procedure as prescribed under Section 202 (1) Cr.P.C. amendment in year 2006 which reads thus:
"Section 202(1) in The Code Of Criminal Procedure, 1973 (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, 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."
In support of his contention, he has placed reliance in case Abjijit Pawar versus Hemant Madhukar Nimbalkar and another, (2017) 2 SCC 528. The relevant para of aforesaid judgment is as under:
?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 enquiry or investigation before issuing the process. Section 202 Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22-6-2006 by adding the words ?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 provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment.?
In view of above, application deserves to be allowed and relief seeks by the applicant be granted to him.
Par contra, learned AGA and opposite party no. 1 contended that though in first part of complaint address of the proposed accused are not given due to inadvertence, but at second page in para 4 addresses of the applicants of Azamgarh is given. Moreover, subsequent to passing of impugned summoning order after seeking permission of Court by way of amendment address of accused have been written in the complaint. In view of above, this application is devoid of merits and is liable to be rejected.
I have considered the rival submissions and perused the record.
Admittedly, there is earlier enmity between the complainant and applicant. Applicant is resident of District Azamgarh which is not provided in the complaint in the array of parties due to which the Magistrate Court could not comply the provisions of above referred Section 202 (1) Cr.P.C., which is a mandatory provision. The revisional court also not considered this aspect of the matter.
In view of above, impugned orders are not sustainable in the eyes of law and liable to be quashed. Accordingly, this application is allowed and impugned orders dated 6.10.2017 & 27.5.2016 (Annexure 1 & 2) are hereby quashed. Matter is remanded back to the Court below for further proceedings in accordance with law especially in view of the provisions of Section 202 (1) Cr.P.C. as discussed above. The opposite party no. 1 is directed to appear before the Court concerned on the next date fixed in the case .
Order Date :- 28.2.2019 Ravi Prakash