High Court
Case Details
A.F.R. Neutral Citation No. - 2025:AHC:136614 Court No. - 81 Case :- APPLICATION U/S 528 BNSS No. - 28213 of 2025 Applicant :- Archit Agarwal Opposite Party :- Union Of India And Another Counsel for Applicant :- Nipun Singh,Ritaj Vikram Singh Counsel for Opposite Party :- G.A. Hon'ble Manoj Bajaj,J. Applicant has filed this application under Section 528 Bhartiya Nagrik Suraksha Sanhita, 2023 to challenge the summoning order dated 26.6.2025 passed by Special Chief Judicial Magistrate, Meerut as well as the entire proceedings of Complaint Case No. 4503 of 2021, titled Union of India Vs. Archit Agarwal, arising out of Case No. 34 of 2020, under Sections 132(1)(b), 132(1)(C), 132(1)(i) Central Goods and Services Tax Act, 2017, pending before the Special Chief Judicial Magistrate, Meerut. Learned counsel for the applicant has argued that the complainant-Mr. Raghvendra Singh Rathore, Superintendent (A E), CGST Commissionerate, Meerut has falsely implicated the applicant in the above Complaint Case No. 526/9 of 2020-21 for the alleged commission of offences punishable under Sections 132(1)(b), 132(1)(C), 132(1)(i) Central Goods and Services Tax
Facts
Act, 2017, and in the subject complaint, firstly the process against the accused-applicant was issued vide order dated 15.3.2021, but the same was challenged by the applicant before this Court through Application U/S 482 No. 25678 of 2022 and vide order dated 14.12.2022 the impugned summoning order dated 15.3.2021 was set aside for lack of compliance of Section 202 Cr.P.C. and the matter was remanded back before the trial court for a fresh consideration. Learned counsel submits that again the trial court- Special Chief Judicial Magistrate, Meerut has issued the process against the accused-applicant vide impugned order dated 26.6.2025 without complying with the mandatory provisions of Section 202 Cr.P.C., therefore, the impugned summoning order dated 26.6.2025 is not sustainable. Learned counsel has drawn the attention of the Court to the memo of complaint to point out that the applicant being resident of District Moradabad could not have been summoned straightaway and the compliance of Section 202 Cr.P.C. is mandatory. Besides, learned counsel has argued 2 NA528 No. 28213 of 2025 that as the applicant is a permanent resident of District Moradabad, therefore, the trial court at Meerut has no territorial jurisdiction to take cognizance of the offences, but without examining the legality of this material issue and the defect in the complaint, the trial court has passed the impugned summoning order in a non speaking manner. He prays that the impugned summoning order dated 26.6.2025 and the entire proceedings arising out of it, be quashed, in the interest of justice. Upon hearing the leaned counsel for the applicant and considering his submissions, this Court finds that though, previously this Court vide order dated 14.12.2022 had set aside the order dated 15.3.2021 issuing process against the accused, but considering the facts and circumstances of the case particularly, the status of the complainant, who is a public servant, it cannot be said that the provisions of Section 202 Cr.P.C. are mandatory in nature. At this juncture, it is relevant to read Section 200 Cr.P.C. contained in Chapter XV (Code of Criminal Procedure, 1973) and the same is reproduced below :- "200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them." A perusal of the above provision makes it clear that before recording a
Legal Reasoning
satisfaction that prima facie case for issuance of process against the accused is made out, the court is required to analyze the averments in the complaint as well as the statements of witnesses examined under Section 200 Cr.P.C., but the proviso to this Section contains an exception to the general rule, and exempts the complainant from his examination and others witnesses, if, the 3 NA528 No. 28213 of 2025 complaint is instituted by a public servant, in discharge of his official duty. During the course of hearing, it is fairly stated by learned counsel for the applicant that in a complaint by a public servant even examination of complainant or other witnesses is not necessary for issuance of process, but he reiterated his argument that the provisions of Section 202 Cr.P.C. being mandatory have to be complied with strictly. Here, it is relevant to have a glance of Section 202 Cr.P.C. and the same is extracted below:- "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] [Inserted by Act 25 of 2005, Section 19 (w.e.f. 23-6-2006).] 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 Court on an officer-in-charge of a police station except the power to arrest without warrant." A careful reading of the above Section 202 Cr.P.C. clarifies that the inquiry/investigation contemplated by above provision is required where the Magistrate deems necessary to ascertain the truthfulness of the allegations in the complaint case, where the complaint or the statements of witnesses fall short of the standards required to establish a prima facie commission of offence by the accused. Under such circumstances, the Magistrate can postpone the issuance of process against the accused and order an inquiry/investigation. Once, the Magistrate, is satisfied that the averments in 4 NA528 No. 28213 of 2025 the complaint and the material relied upon by the public servant prima facie disclose commission of offence, the Magistrate can straightaway issue the process against the accused, and Section 202 Cr.P.C. may not be attracted. Further, the above provision has been analyzed by the Hon'ble Supreme Court in number of cases and in one such case i.e. M/s Cheminova India Ltd. and another Vs. State of Punjab and another, (2021) 8 SCC 818, it has been categorically held by the Hon'ble Supreme Court that the compliance of Section 202 Cr.P.C. is not mandatory where the complaint is instituted by a public servant. The relevant portion of the judgment reads as under:- "Para 20...........Similarly, with regard to the procedure contemplated under Section 202 of the Code of Criminal Procedure, the same is to be viewed, keeping in mind that the complainant is a public servant who has filed the complaint in discharge of his official duty. The legislature in its wisdom has itself placed the public servant on a different pedestal, as would be evident from a perusal of proviso to Section 200 of the Code of Criminal Procedure. Object of holding an inquiry / investigation before taking cognizance, in cases where accused resides outside the territorial jurisdiction of such Magistrate, is to ensure that innocents are not harassed unnecessarily. By virtue of proviso to Section 200 of Code of Criminal Procedure, the Magistrate, while taking cognizance, need not record statement of such public servant, who has filed the complaint in discharge of his official duty. Further, by virtue of Section 293 of Code of Criminal Procedure, report of the Government Scientific Expert is, per se, admissible in evidence. The Code of Criminal Procedure itself provides for exemption from examination of such witnesses, when the complaint is filed by a public servant. In the present case, 2nd Respondent / Public Servant, in exercise of powers under provisions of the Insecticides Act, 1968, has filed complaint, enclosing several documents including reports of the Government Laboratories, it is always open for the Magistrate to issue process on such complaint which is supported by documents. In any event, we do not find any merit in the submissions of the learned Counsel that proceedings are to be quashed only on the ground that, the Magistrate has taken cognizance without conducting inquiry and ordering investigation. In absence of showing any prejudice caused to the appellant at this stage, the same is no ground to quash the proceedings in exercise of power under Section 482 of the Code of Criminal Procedure." (emphasis supplied) As a result of the above discussion, the argument raised by learned counsel for the applicant for setting aside the impugned summoning order dated 26.6.2025 for lack of compliance of Section 202 Cr.P.C. is hereby rejected. The second argument raised by learned counsel for the applicant pertains to 5 NA528 No. 28213 of 2025 the territorial jurisdiction of Special Chief Judicial Magistrate, Meerut is also without any force as District Moradabad falls within the territorial jurisdiction of Meerut GST Commissionerate, and in this regard, the notification dated 22.6.2017 issued by Chief Commissioner of Central Tax Central GST, Meerut Zone, Meerut (Annexure No.5) is on record. Once, the District Moradabad is part of Meerut GST Commissionerate, it cannot be said that the applicant-accused is residing outside the territorial jurisdiction of Special Chief Judicial Magistrate, Meerut. Most importantly, the applicant-accused has already participated in the trial proceedings by cross- examining the prosecution witnesses under Section 244 Cr.P.C. as part pre- charge evidence stands recorded. No other argument has been raised. Resultantly, without meaning any expression of opinion on the merits of the case, this Court does not find it to be a fit case for exercise of inherent powers under Section 528 B.N.S.S., and the application is hereby dismissed. Order Date :- 12.8.2025 P.S.Parihar Digitally signed by :- POORAN SINGH PARIHAR High Court of Judicature at Allahabad