Criminal Misc. No.M-12156 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-12156 of 2009 (O&M) Date of Decision:April 23, 2010 Arvind Kumar Pandey ...........Petitioner Versus Surinder Kumar ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.D.S.Bali, Senior Advocate with Mr. Amandeep Sethi,Advocate for the petitioner. Mr.V.K.Sachdeva,Advocate for the respondent ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure ( for short `Cr.P.C. ) seeking quashing of complaint dated 26.2.2009 titled as `Surinder Kumar vs.Arvind Kumar Pandey' under Sections 323,34,506,341 of the Indian Penal Code (`for short `IPC') pending before the Court of Judicial Magistrate First Class Moga (Annexure P2) along with summoning order dated 2.4.2009 (Anneuxre P3) under Sections 323,341,506 IPC and all the subsequent proceedings arising thereto. During the course of arguments, learned senior counsel for the petitioners has submitted that the summoning order dated 2.4.2009 was liable to be set aside as the same has been passed in violation of the Criminal Misc. No.M-12156 of 2009 (O&M) 2 amended provisions of Section 202 of Cr.P.C. The trial Court had failed to hold an inquiry as envisaged under Section 202 Cr.P.C. before summoning the petitioner. Learned counsel has placed reliance on S.K.Bhowmik vs. S.K.Arora and another 2007(4)RCR(Criminal) 650. Learned counsel for the respondent, on the other hand, has submitted that the impugned summoning order was liable to be upheld. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. Amended Section 202 Cr.P.C. reads as under:- “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] 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 an the witnesses present (if any) have been examined on oath under Section 200. Criminal Misc. No.M-12156 of 2009 (O&M) 3 (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 Code on an officer in charge of a police station except the power to arrest without warrant”. In the present case, a perusal of the impugned summoning order reveals that the petitioner has been summoned on the basis of evidence led by the complainant in his preliminary evidence. However, no inquiry has been conducted by the trial Court as envisaged under Section 202 Cr.P.C. Petitioner is resident of Chandgiarh, whereas, the impugned summoning order has been passed by the Judicial Magistrate First Class, Moga. Thus, as per the above provisions, the Magistrate was required to hold a further inquiry or direct an investigation to be made by a Police Officer or by such other person as he thought fit for the purpose of deciding whether or not there were sufficient grounds for proceeding as petitioner was residing at a place beyond the area in which the Magistrate exercised his jurisdiction. In these circumstances, the impugned summoning order is liable to be set aside. Accordingly, this petition is partly allowed. The impugned order for summoning the petitioner dated 2.4.2009 (Annexure P3) is set aside. The case is remanded back to the Magistrate with a direction to pass Criminal Misc. No.M-12156 of 2009 (O&M) 4 a fresh summoning order adhering to the requirement of Section 202 Cr.P.C. (Sabina) Judge April 23, 2010 arya