The Allahabad High Court while allowing an application observed the procedure prescribed under Section 210 of Cr.P.C is very specific that if the case is instituted otherwise than the police report and it appears to the Magistrate during the course of enquiry or trial that an investigation by the police is in progress which is the subject matter of the enquiry or trial held by him, the Magistrate shall stay proceeding of such enquiry or trial.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing an application under section 482 filed by Mohammad Ayub Rizvi and Others.
The application has been filed with the prayer to stay the entire proceedings in Complaint Case under Section 498-A, 323 I.P.C and Section 4 D.P Act by the court of Civil Judge (Junior Division) FTC/Judicial Magistrate, Unnao alongwith the summoning order dated 13.9.2018.
The facts of the case are that on 11.3.2012, the opposite party no 1 got married with Aayaz @ Babu son of applicant no 1 at Lucknow, and as Aayaz was working in Saudi Arabia, therefore, the opposite party no1 is willing to live with him in Saudi Arabia. When Aayaz, while leaving the opposite party no1 in India, went to Saudi Arabia on 20.4.2015 then she started creating trouble in the entire family and went to live separately at Balaganj and then to her parents’ home at Unnao.
Thereafter, a complaint was filed on 31.1.2018. Further an F.I.R was also lodged on 16.2.2018. The trial court passed the order on 13.9.2018 and summoned the applicant under Section 498A, 323 I.P.C and Section 4 of the Dowry Prohibition Act which is under challenge in the application.
Contention of the counsel for the applicants is that two criminal proceedings were initiated simultaneously – one by way of lodging F.I.R on 16.2.2018 and another by way of instituting a complaint on 13.1.2018 wherein the applicant has been summoned.
He submitted that the trial court had violated the mandate of Section 202 (1) of CrPC.
He further added that admittedly, the applicants reside outside the territorial jurisdiction of the Magistrate concerned as the applicants reside at Lucknow and summons have been issued by the trial court at Unnao.
He added that neither any enquiry nor any investigation has been done prior to proceeding in the matter, which is apparent from the order itself.
Adding his arguments, he further submitted that there is also violation of Section 210 of Cr.P.C as once the Magistrate is proceeding in the complaint case and, during the course of hearing, if it comes in the knowledge of the Magistrate that an investigation by the police is in progress in relation to the offence, which is the subject matter of enquiry or trial by him, the Magistrate shall stay proceedings of such enquiry or trial and shall call for a report in the matter from the police officer conducting the investigation.
It is further prayed that if a report is made under Section 173 Cr.P.C, such Magistrate shall enquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on the police report.
He added that so far as the case is concerned, the F.I.R was also lodged on 16.2.2018 for the same offence and without calling any report from the Investigating officer, the trial court proceeded in the complaint case which is against the provisions of Section 210 CrPC.
He further argued that the summoning order dated 13.9.2018 is unreasonable and has been passed in a cavalier manner. He submits that it has been a settled law that while proceeding in the matter arising out of complaint case if a Magistrate is of the view that summon be issued to the accused persons, the reason must be recorded which is missing in the impugned order dated 13.9.2018 and, in this view also, the order dated 13.9.2018 is not sustainable.
Concluding his arguments, he submits that the dispute, if any, may be in between the husband and wife and the applicants being inlaws, have nothing to do with any kind of offence as has been mentioned in the complaint by the opposite party no 2.
He also submitted that there is no cogent piece of evidence against the applicants so as to connect them in committing offence under which the applicants have been summoned by way of impugned order dated 13.9.2018. Therefore, the submission is that the order dated 13.9.2018 may be set aside and criminal proceedings against the applicants may be dropped.
Per contra, counsel for the State and the opposite party no 2 vehemently opposed the contention aforesaid and has categorically replied the contention raised by the counsel for the applicants and submit that so far as the question with respect to violation of mandate of Section 202 Cr.P.C is concerned, the Magistrate has recorded the statements of complainant and the witness, wherein the witness, in his statement, has stated the name of the applicants, which clearly shows that the applicants are the persons, who have committed the offence and, therefore, the procedure prescribed under Section 202 Cr.P.C has not been violated.
The Court observed that,
Having heard counsel for the parties and after perusal of the records, it transpires that a complaint was instituted by the opposite party no 2 on 31.1.2018, whereby, it has been stated that the applicants have tortured the opposite party no 2 for dowry and, on the other hand, an F.I.R was also lodged on 16.2.2018, with same allegations.
When the court examined the contention raised by the counsels for the applicants that whether there is any violation of mandate of Section 210 of Cr.P.C, it reveals from the record that after lodging the complaint on 31.1.2018, an F.I.R was lodged at 16.2.2018, for the same incident, whereas the procedure prescribed under Section 210 of Cr.P.C is very specific that if the case is instituted otherwise than the police report and it appears to the Magistrate during the course of enquiry or trial that an investigation by the police is in progress which is the subject matter of the enquiry or trial held by him, the Magistrate shall stay proceeding of such enquiry or trial and call for a report from the police conducting such investigation but so far as the case is concerned, the trial court ignoring the provisions of Section 210 Cr.P.C, proceeded in the matter and has summoned the applicants under Sections 498A, 323 I.P.C and Section 4 of the Dowry Prohibition Act.
Further, so far the plea is raised that the provisions of Section 202 (1) Cr.P.C has been violated, it reveals from the record that the statement of the complainant and the witness under Sections 200 and 202 Cr.P.C, respectively, have been recorded, wherein there is no whisper regarding the genuineness of the applicants/accused persons and their address as the provision prescribed under Section 202 (1) clearly speaks that if the proposed accused are living outside territorial jurisdiction of Magistrate concerned, he shall make an enquiry or investigation though if the statement of the witnesses or complainant are enough to show the genuineness of such proposed accused persons, no further investigation or enquiry is required.
Now, it emerges that reasons essentially be recorded in the summoning order, if the matter is arising out of a complaint case. Apparently from perusal of the impugned summoning order, it transpires that the reasons have not been recorded and, therefore, the same vitiates in the eyes of law.
“In view of the aforesaid submissions and discussions, the Court is of the considered opinion that the impugned summoning order dated 13.9.2018, passed by the trial court is against the settled proposition of law”, the Court further observed while allowing the application.
Consequently, the Court set aside the summoning order dated 13.9.2018 passed by the trial court.