IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. M. No.50097-M of 2007 Date of Decision:8.3.2011 Sham Sunder and others .... Petitioners Versus Pushpa Gupta .... Respondent CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Akshay Bhan, Advocate for the petitioners. Mr. R.K. Trikha, Advocate for the respondent. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J.(Oral) The present petition has been filed under Section 482 Cr.P.C. for quashing of the complaint dated 17.7.2006 (Annexure P-4) under Sections 302/148/149 IPC and the order dated 25.9.2007 (Annexure P-6) passed by Sessions Judge, Faridkot whereby the order dated 28.9.2006 dismissing the complaint of the respondent has been set aside and the matter was remanded back to the Judicial Magistrate, Ist Class, Faridkot and the order dated 13.10.2007 (Annexure P-7) passed by Judicial Magistrate, Ist Class, Faridkot summoning the petitioners to face trial under Sections 302/148/149 IPC. Learned counsel for the petitioners at the very out set states that he is not addressing the arguments on merits and is reserving this right to challenge the complaint subsequently on merits at later stage, if so required. The said liberty is granted. However, learned counsel for the petitioners has addressed arguments on the legal issue by raising two fold arguments. Firstly, the Crl. M. No.50097-M of 2007 -2- petitioners are residents of Muktsar. Whereas the summoning order has been passed by the Court at Faridkot. As such, the petitioners admittedly reside out side the jurisdiction of Faridkot. As such, the said order has been passed without holding any inquiry as per the provisions of Section 202(1) Cr.P.C. which is mandatory. Secondly, it is further contended that the summoning order has been passed without application of mind and only as per the observation made by the Appellate Court in his order dated 25.9.2007. Learned counsel for the respondent, on the other hand, although did not dispute that no enquiry as envisaged under Section 202(1) of Cr.P.C. was held, however, submitted that the holding of an enquiry under Section 202(1) Cr.P.C. was not mandatory. Learned counsel for the parties are heard. Without touching the issue on merits, the only question, in hand, is as to whether, it was mandatory for the trial Court to conduct an enquiry as per mandate of Section 202(1) Cr.P.C. or not. This issue was dealt in detail by this Court in the case titled as Savera Sidhu v. Harleen Sidhu and another vide Crl. Misc. No.M-7689 of 2009 decided on 14.10.2010 after relying on the judgment rendered in the case of S.K. Bhowmik v. S.K. Arora reported as 2007(4) RCR (Criminal) 650, as well as, the judgment rendered by Hon'ble the Apex Court in the case of Shivjeet Singh v. Nagendra Tiwary and others reported as 2010 (7) SCC 578, wherein, it was held that the enquiry as envisaged under Section 202(1) Cr.P.C. was mandatory, in case, the accused is residing outside the jurisdiction of the Magistrate, where the complaint is filed. The said issue, in the facts of the present case being squarely Crl. M. No.50097-M of 2007 -3- covered by the judgment rendered by this Court in the case of Savera Sidhu (supra), it was incumbent upon the Magistrate to hold an enquiry as envisaged in the said Section and comply with the mandate of Section 202 (1) Cr.P.C. Section 202(1) Cr.P.C. reads as under:- “202. Postponement of issue of process:- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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 enquire into the case himself of 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.” The purpose behind this amendment can well be noticed from the draft accompanying the amendment. This is as follows: “ Clause 19-False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend Sub- section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing Crl. M. No.50097-M of 2007 -4- beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceedings against the accused.” Learned counsel appearing on behalf of the respondent does not dispute the said legal position. In view of the above, order dated 1310.2007 (Annexure P-7) is set aside and the matter is remanded back to the concerned Court with a direction to pass fresh order after complying with the provisions of Section 202(1) Cr.P.C. Further the said order shall be passed by a taking an independent view and observation made by the Appellate Court in its order dated 25.9.2007 shall not have any bearing on the merits of the case. Disposed of in the above terms. 8.3.2011 ( NIRMALJIT KAUR ) rajeev JUDGE