Dipanshu Chaudhary v. Arvind Singh Bhadauriya and Another), under Section
Case Details
Neutral Citation No. - 2024:AHC:163427 Court No. - 75 Case :- APPLICATION U/S 482 No. - 19341 of 2024 Applicant :- Arvind Singh Bhadauriya @ Raju Bhadauriya And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashutosh Mishra,Shailendra Kumar Ojha Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material brought on record. 2. This application u/s 482 Cr.P.C. has been filed for quashing of entire proceedings, including summoning order dated 21.12.2023, of Complaint Case No. 5088 of 2023 (Dipanshu Chaudhary vs. Arvind Singh Bhadauriya and Another), under Section - 406 I.P.C., Police Station - Vebcity, District - Ghaziabad, pending in the court of Additional Civil Judge (J.D.)/Judicial Magistrate, Court No.1, Ghaziabad.
Legal Reasoning
misappropriated by them and a prima facie case under Section - 406 I.P.C. is made out. It was submitted that the complainant was examined under Section - 200 Cr.P.C. and one witness was examined under Section - 202 Cr.P.C. and thus, the summoning order has been passed after conducting proper inquiry under Section - 202 Cr.P.C. 5. I have considered the rival submissions and perused the record. 6. The main argument raised on behalf of applicants is that the applicants were not residing within the territorial jurisdiction of the trial court and thus, as per provisions of Section - 202 (1) Cr.P.C., it was mandatory for the learned trial court / magistrate to conduct an inquiry under Section - 202 (1) Cr.P.C. but in the instant matter, no such inquiry has been conducted. In case of Odi Jerang (supra), it has been held by the Hon'ble Apex Court that compliance of provisions of Section - 202 (1) Cr.P.C. is mandatory in nature. In the instant matter, perusal of record shows that the complainant was examined under Section - 200 Cr.P.C. and one witness, namely, Sachin Yadav was examined in inquiry under Section - 202 Cr.P.C. and thereafter impugned summoning order was passed. Thus, it cannot be said that no inquiry under Section - 202 (1) Cr.P.C. has been conducted. At this stage, it would be pertinent to mention that in Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638, after referring to the definition of the word "inquiry" in Section 2(g) of the Cr.P.C., the Supreme Court held that: "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 the 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." 7. In case of Nishant Tiwari @ Sonu And 2 Ors vs. State Of U.P. And Another (482 Cr.P.C. Application No. 21608 of 2014), decided on 24.06.2014, the same issue was raised before the co-ordinate Bench of this court. In that case too, the accused persons were residents of place outside the jurisdiction of the court of magistrate and they were summoned after examining the complainant under section 200 CrPC and two witnesses were examined during inquiry under section 202 Cr.P.C. and Court held as under : ''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 statements 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." 8. From the above-stated pronouncements, it is quite apparent that examination of witnesses by the Magistrate under Section 202 Cr.P.C. is an inquiry as contemplated under Section - 202 (1) Cr.P.C. In case of Ajay Garg (supra), no witness was examined under Section - 202 Cr.P.C. and thus the said case has no application in the instant matter. Thus, it is clear that if a prospective accused resides outside the territorial jurisdiction of the Magistrate, the compliance of provisions of Section 202 (1) Cr.P.C. is mandatory before issuance of any process against the prospective accused persons, however, as stated earlier, the examination of witnesses by Magistrate under Section 202 Cr.P.C. falls within the realm of such inquiry. In view of above-stated legal position, the contention of learned counsel for applicants that no inquiry under Section - 202 Cr.P.C. was conducted, has no substance. 9. In view of aforesaid and considering the material on record, no case for quashing of impugned summoning order is made out. The perusal of material on record shows that the impugned order has been passed by applying due procedure and no substantial illegality, perversity or any other substantial error could be pointed out. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter-alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power can not be exercised to stifle a legitimate prosecution. 10. In view of the aforesaid, the instant application under Section 482 Cr.P.C. lacks merit and accordingly, it is dismissed. Order Date :- 15.10.2024 S Rawat
Arguments
3. It is submitted by learned counsel for applicants that the opposite party no.2 has lodged the impugned complaint making false and baseless allegations. In fact the money given by complainant to the applicants has already been returned back to him. It is further submitted that the impugned complaint has been filed in District - Ghaziabad, whereas applicants are residents of Kanpur Nagar and no inquiry under Section - 202 (1) Cr.P.C. has been conducted and thus, the impugned summoning order is against law. In this connection, learned counsel has place reliance upon Odi Jerang vs. Nabajyoti Baruah and Others [Special Leave to Appeal (Crl.) No(s). 2135/2022], decided on 22.08.2023 and Ajay Garg and Another vs. State of U.P. and Another 2023:AHC:243221. Referring to facts of the matter, it was submitted that the impugned proceedings are liable to be quahsed. 4. Learned A.G.A. has opposed the application and submitted that there are clear allegations that the amount entrusted to the applicants by the complainant, was