CRM No. M 27784 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 27784 of 2009 Date of decision: 03.05.2011 Onkar Singh Jainoti and others ........ Petitioners Versus State of Haryana and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Sudhanshu Batra, Senior Advocate with Mr. Sarojanand Jha, Advocate for the petitioner Mr. Sidrath Sarup, DAG, Haryana for the respondent - State Mr. V K Jindal, Advocate for respondent No. 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C for setting aside the order dated 09.06.2009 passed by Additional Sessions Judge, Karnal in Criminal revision No. 27 of 2009 (P1) and quashing of summoning order dated 13.03.2007 passed by Chief Judicial Magistrate, Karnal (P2) and for CRM No. M 27784 of 2009 2 quashing of the complaint case titled as Brij Sharma v. Onkar Singh and others (P5) as well as related proceedings arising out of the same. Learned Senior Counsel for the petitioners - Mr. Sudhanshu Batra, at the very outset, did not argue the case on merits and prayed for liberty to allow him to reserve his right to raise the question on merits at subsequent stage, if so required. However, the complaint and the summoning order was impugned by raising a legal issue. It was contended that the petitioners are working with a News Channel (M/s New Delhi Television Limited) at New Delhi and are therefore, residing and working for gain outside the territorial limits of the Courts at Karnal. In spite of the same, the petitioners have been summoned without following the mandate of Section 202( 1) of Cr.P.C incorporated by the amendment of the year 2006. 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 (CRM 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 in the judgment rendered by the 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. CRM No. M 27784 of 2009 3 Learned counsel for the respondents, however, refused to accept the said fact and submitted that the judgment in the case of Savera Sidhu (supra) should be reviewed in view of the judgments rendered in the case of Iridium India Telecom Limited v. Motorola Incorporated and others reported as 2011(1) (RCR) Criminal (235) and Rameshwara Jute Mills Limited v. Sushil Kumar Daga and others reported as 2009 Cri L J 2727. He submitted that an enquiry under Section 202(1) of the Code of Criminal Procedure was not mandatory and even if it was, the pre-charge evidence recorded was sufficient. It was further stated that the said enquiry under Section 202(1) Cr.P.C under no circumstances can be more than the enquiry as envisaged under Section 200 of the Code of Criminal Procedure while relying on the judgment rendered by the Apex Court in the case of Iridium India Telecom Limited v. Motorola Incorporated and others reported as 2011(1) (RCR) Criminal (235) to substantiate the said arguments. Reliance was also placed on the judgment rendered by the Single Judge of Calcutta High Court in the case of Rameshwara Jute Mills Limited v. Sushil Kumar Daga and others reported as 2009 Cri L J 2727, to argue that the said enquiry under Section 202 Cr.P.C is not mandatory. Learned counsel for the parties are heard. 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 CRM No. M 27784 of 2009 4 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 which is:- “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 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 proceeding against the accused.” Hon'ble the Supreme Court in the case of Shivjeet Singh's (supra) held in no uncertain terms that the enquiry under Section 202 (1) Cr.P.C, in case, the accused resides outside the jurisdiction of the Magistrate where the complaint is filed, is mandatory. The same reads as under:- “11. Section 202(1) empowers the Magistrate to 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 whom he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By amending Act 25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area CRM No. M 27784 of 2009 5 beyond the territorial jurisdiction of the Magistrate concerned. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or where the complaint has not been made by a court unless the complainant and the witnesses have been examined on oath under Section 200.” With respect to the second issue qua nature of the enquiry, the judgment rendered by the Supreme Court in the case of M/s Pepsi Foods Limited v. Special Judicial Magistrate reported as 1998 AIR (SC) 128 would be relevant, wherein, it was held that:- “26. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the CRM No. M 27784 of 2009 6 allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” The judgment relied upon by the learned counsel for the petitioner rendered by the Apex Court in the case of Iridium India Telecom Limited v. Motorola Incorporated and others (supra) rather strengthens the view that the enquiry under Section 202 Cr.P.C is specific and limited for ascertaining the truth or falsehood of the allegations made in the complaint. The observations in no way can be made to read or interpret that the said enquiry was in the nature of enquiry held under Section 200 Cr.P.C and no more. Thus, the Magistrate while holding enquiry under Section 202 (1) Cr.P.C must record its personal satisfaction atleast to the extent of truth or falsehood of the allegations made in the complaint as dealt by the Hon'ble Supreme Court in the case of Iridium India Telecom Limited v. Motorola Incorporated and others (supra) while referring to the judgment rendered by the Apex Court in the case of Smt. Nagawwa v Veerana Shivalingappa Konjalgi and others (1976) 3 SCC 736 as also in the case of M/s Pepsi Foods Limited (supra). In the present case, the summoning order dated 13.03.2007 passed by Chief Judicial Magistrate, Karnal (P2) does not reflect that the Magistrate was conscious of the fact that he was holding an enquiry under Section 202 (1) Cr.P.C and nor did he record his personal satisfaction. The second argument that the enquiry under Section 202 (1) Cr.P.C was not mandatory in view of the judgment rendered by the Single Judge of Calcutta High Court in the case of Rameshwara Jute Mills Limited CRM No. M 27784 of 2009 7 v. Sushil Kumar Daga and others (supra) cannot be sustained as learned Single Bench of Calcutta High Court did not consider the judgment rendered by the Apex Court in the case of Shivjeet Singh v. Nagendra Tiwary and others reported as 2010 (7) SCC 578 as the same came to be passed at a later point of time. Therefore, as per the opinion of this Court, the present case is covered by the judgment rendered in the case of Savera Sidhu v. Harleen Sidhu and another (CRM M 7689 of 2009, decided on 14.10.2010). Admittedly, the petitioners reside outside the jurisdiction of the Courts at Karnal. In spite of the same, no enquiry under Section 202 (1) of the Code of Criminal Procedure which is mandatory was held. Therefore, the impugned judgment and order are liable to be set aside. Accordingly, the summoning order dated 13.03.2007 passed by the Chief Judicial Magistrate, Karnal (P2) as well as the judgment dated 09.06.2009 passed by the Additional Sessions Judge, Karnal in Criminal Revision No. 27 of 2009 (P1) are set aside and the matter is remanded back to the Magistrate to pass appropriate orders after complying with the amended provisions of Section 202 (1) Cr.P.C. (Nirmaljit Kaur) Judge 03.05.2011 mohan