Criminal Misc. No.M-17756 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision:2.9.2011 Criminal Misc. No.M-17756 of 2009 (O&M) K.G.Chugh and another ......Petitioners Versus Rajinder Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Rajesh Hooda, Advocate for Mr.Kamal Sehgal, Advocate, for the petitioners. Mr.S.K.Garg Narwana, Advocate, for the respondent. **** SABINA, J. Complainant has filed the complaint (Annexure P-6) against the petitioners under Sections 294, 323, 356, 506 of the Indian Penal Code (IPC for short). The allegations levelled against the petitioners are that on 15.4.2004 at about 1.30 p.m. the petitioners had man-handled the complainant and had used derogatory words while abusing him. The petitioners had given kick blows on the person of the complainant. Vide order dated 29.9.2007 (Annexure P-10), the petitioners were ordered to be summoned to face the trial for offence under Sections 323, 506 read with Section Criminal Misc. No.M-17756 of 2009 (O&M) 2 34 of the Indian Penal Code, 1860 (IPC for short). The complaint qua the other accused was dismissed. Learned counsel for the petitioners has submitted that the impugned summoning order was liable to be set aside as the same was in violation of the mandatory provision of Section 202 IPC (amended). In support of his arguments, learned counsel for the petitioners has placed reliance on the decision of this Court in S.K.Bhowmik vs. S.K.Arora and another 2007 (4) RCR (Criminal) 650, wherein, in para 14, it was held as under:- Process is issued in this case only on the basis of examination of the complainant and CW-2. This is obviously under Section 200 Cr.P.C. It was done much prior to the date of amendment of Section 202 Cr.P.C. It is seen that no enquiry/investigation is held as is required under Section 202 Cr.P.C. The quashing of the summoning order is sought mainly on the ground that the Magistrate has not held enquiry, which is obligatory. If the Magistrate had considered the amended Section 202 Cr.P.C., he was bound to hold enquiry/investigation thereunder before issuing process, though this court would not have any power to interfere or to substitute its own discretion over that of a Magistrate. Where Criminal Magistrate is seen to have exercised his discretion judicially, the same may not call for any interference. The defence of the accused is not the factor, which is required to be taken into consideration to call for any interference in the order. Even the irregularity in the procedure under Criminal Misc. No.M-17756 of 2009 (O&M) 3 this section, which does not result in miscarriage of justice, may not call for any interference by a court. Whether a prima facie case is made out from the evidence recorded or not, would be a matter within the discretion of the Magistrate. In fact some inadequacy of the enquiry will also not call for any interference. But enquiry or investigation in case where the accused resides beyond his jurisdiction cannot now be wished away being mandatory. In this case, no enquiry or investigation have been held and process, as such, is issued in violation of the mandatory requirement of Section 202 Cr.P.C. and cannot be sustained. Thus, impugned order is accordingly set aside and case is sent back to the Magistrate to examine fresh by adhering to the requirement of Section 202 Cr.P.C.” Learned counsel for the respondent, on the other hand, has submitted that the complainant had led his evidence in support of his case and the summoning order in question passed by the trial Court was liable to be upheld. Amended Section 202 of the Code of Criminal Procedure (Cr.P.C. for short) 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] Criminal Misc. No.M-17756 of 2009 (O&M) 4 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. (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”. Thus, as per the above provision, the Magistrate shall in case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postponed the issue of process Criminal Misc. No.M-17756 of 2009 (O&M) 5 against the accused and also inquire into the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceedings against the accused. In the present case, a perusal of the impugned summoning order reveals that the Magistrate has relied upon the evidence led by the complainant in support of his case. The Magistrate has failed to conduct any inquiry as envisaged under Section 202 (1) Cr.P.C. before passing the impugned summoning order as the petitioners are residents of Rohtak and are, thus, not residing in the area in which the Magistrate exercises his jurisdiction. Accordingly, this petition is partly allowed. The impugned summoning order dated 22.9.2010 (Annexure P-10) passed by the trial Court is set aside and the Magistrate is directed to pass a fresh order in accordance with law after complying with the mandatory provisions of Section 202 Cr.P.C. (SABINA) JUDGE September 2, 2011 anita