The Allahabad High Court while allowing an application said that where the accused in a complaint case is residing outside the jurisdiction of the Magistrate, it is mandatory for the Magistrate to conduct an inquiry under Section 202 (1) Cr.P.C and only after such inquiry the Magistrate is empowered to issue summons against the accused persons in a complaint case.
A Single Bench of Justice Anish Kumar Gupta passed this order while hearing an application under section 482 filed by Danish Khan and 2 Others.
The application has been filed seeking quashing of the summoning order dated 05-03-2022 passed by the Additional Civil Judge (J.D)/Judicial Magistrate, Pilibhit in Complaint Case under section 323, 504 IPC, P.S Pooranpur, district Pilibhit.
Counsel for the applicants has raised a purely legal question with regard to an inquiry as contemplated under Section 202 (1) Cr.P.C, which has not been conducted in the case by the Magistrate before issuing summons.
The facts of the case are that in the case the opposite party no 2 is the husband of the sister of the applicants herein. Due to the matrimonial discord between the opposite party no 2 and sister of the applicants, various matrimonial cases are pending against each other.
In the said matrimonial complaints, allegedly a compromise has taken place between the sister of the applicants and the opposite party no 2. In pursuance of the said settlement the applicants are alleged to have went to the house of the opposite party no 2 and allegedly taken back the various articles given during the marriage, thereafter, some dispute arisen between them with regard to the divorce on which allegedly the applicants have abused and tried to abduct the opposite party no 2. On which the other persons came there and saved the opposite party no 2.
After the said complaint was filed the statements of the complainant as well as the statements under Section 202 Cr.P.C were recorded by the Magistrate and thereafter vide impugned order dated 05-03-2022 the Magistrate has summoned the applicants herein.
Counsel for the applicants further submitted that since the applicants herein were residing outside the jurisdiction of the Magistrate at Pilibhit who has issued summons against the applicants and as per Section 202 (1) Cr.P.C as amended in the year 2006 it was mandatory to conduct an inquiry before passing any summoning order.
In support of his submissions, counsel for the applicants has relied upon a judgment of coordinate Bench of the Court dated 04-02-2022 passed in an application u/s 482 Smt Geeta and 4 Others Vs State of U.P and another has held that the provisions of Section 202 (1) Cr.P.C are mandatory where the accused is residing at a place beyond the area of its jurisdiction prior to issuance of process, the Magistrate is required to conduct an inquiry under Section 202 (1) CrPC.
“In the case the Magistrate has not conducted any inquiry and has directly summons the applicants herein on the basis of the statements recorded under Sections 200 and 202 Cr.P.C, therefore, the impugned order prima facie is vitiated and is not sustainable in the eye of law and is liable to be quashed”, the Court observed.
Accordingly, the Court allowed the application under Section 482 Cr.P.C and the order dated 05-03-2022 passed by the Additional Civil Judge (J.D)/Judicial Magistrate, Pilibhit is hereby quashed.