Crl. Revision No. 2427 of 2007 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No. 2427 of 2007 (O&M) Date of Decision: 06.9.2011. Sudhir Awasthi and others ........Petitioners Vs. Shamsher Singh and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Anmol Rattan Singh, Senior Advocate with Mr. R.K.Chugh, Advocate for the petitioners. Mr. R.S.Madan, Advocate for respondent No.1. Mr. Amandeep Singh, Asstt. A.G., Haryana for respondent No.2. ..... SABINA, J. Petitioners have filed this petition under Section 401 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) read with section 482 Cr.P.C. for setting aside the order dated 16.11.2007 and quashing of the complaint (Annexure P-5) under Section 416, 499, 500, 506, 120-B of the Indian Penal Code ('IPC' for short), and all subsequent proceedings, arising therefrom. Learned senior counsel for the petitioners has submitted that the petitioners were residents of New Delhi whereas the impugned summoning order had been passed by the court at Jind. The trial court was required to conduct an inquiry before summoning the accused in terms of Section 202 Cr.P.C. In support of his arguments, learned counsel for the petitioners Crl. Revision No. 2427 of 2007 (O&M) -2 - 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 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 Crl. Revision No. 2427 of 2007 (O&M) -3 - 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 respondent No.1, on the other hand, has submitted that the evidence led by the complainant had been duly considered by the trial court while passing the impugned summoning order and hence, the same 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 Crl. Revision No. 2427 of 2007 (O&M) -4 - 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 Crl. Revision No. 2427 of 2007 (O&M) -5 - in which he exercises his jurisdiction postponed the issue of process 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 New Delhi and are, thus, not residing in the area in which the Magistrate exercises his jurisdiction. Accordingly, this petition is allowed. The impugned summoning order dated 16.11.2007 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 06, 2011 Gurpreet