IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. 1. Criminal Miscellaneous No.8221-M of 2009 (O&M) DATE OF DECISION : SEPTEMBER 14, 2011 Atul Srivastava ....... PETITIONER(S) versus State of Punjab and another .... RESPONDENT(S) 2. Criminal Miscellaneous No.8321-M of 2009 (O&M) Rajiv Singh ....... PETITIONER(S) versus Ms. Poonam Mehra and another .... RESPONDENT(S) 3. Criminal Miscellaneous No.8324-M of 2009 (O&M) K.P. Singh ....... PETITIONER(S) versus Ms. Poonam Mehra and another .... RESPONDENT(S) 4. Criminal Miscellaneous No.8532-M of 2009 (O&M) Rahul Mehta ....... PETITIONER(S) versus Ms. Poonam Mehra and another .... RESPONDENT(S) 5. Criminal Miscellaneous No.8237-M of 2009 (O&M) Gagandeep Singh ....... PETITIONER(S) versus Criminal Miscellaneous No.8221-M of 2009 (O&M) 2 Ms. Poonam Mehra and another .... RESPONDENT(S) 6. Criminal Miscellaneous No.19166-M of 2010 (O&M) S.K. Sahijpal ....... PETITIONER(S) versus M/s Northern Trading and Impex and another ... RESPONDENT(S) 7. Criminal Miscellaneous No.19259-M of 2010 (O&M) Mukesh Rai ....... PETITIONER(S) versus Poonam Mehra and another .... RESPONDENT(S) 8. Criminal Miscellaneous No.2945-M of 2011 (O&M) Pawan Kumar ....... PETITIONER(S) versus M/s International Auto Trac Finance Limited .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Sarvshri RS Cheema and R.S. Rai, Sr. Advocates, with Mr. Anurag Arora, Advocate, for the petitioner(s). Mr. Hitesh Pandit, for the petitioner(s). Mr. Manoj Bajaj, Addl.AG, Punjab. Mr. ML Saggar, Sr. Advocate, with Mr. GP Vashisht, Advocate, for the private respondent(s). Mr. HS Hundal, Advocate, for private respondent(s). AJAI LAMBA, J. (Oral) Criminal Miscellaneous No.8221-M of 2009 (O&M) 3 This order shall dispose of Criminal Miscellaneous No.8221-M of 2009 (Atul Srivastava versus State of Punjab and another), Criminal Miscellaneous No.8321-M of 2009 (Rajiv Singh versus Ms. Poonam Mehra and another), Criminal Miscellaneous No.8324-M of 2009 (K.P. Singh versus Ms. Poonam Mehra and another), Criminal Miscellaneous No.8532-M of 2009 (Rahul Mehta versus Ms. Poonam Mehra and another), Criminal Miscellaneous No.8237-M of 2009 (Gagandeep Singh versus Ms. Poonam Mehra and another), Criminal Miscellaneous No.19166-M of 2010 (S.K. Sahijpal versus M/s Northern Trading and Impex and another), Criminal Miscellaneous No.19259-M of 2010 (Mukesh Rai versus Poonam Mehra and another) and Criminal Miscellaneous No.2945-M of 2011 (Pawan Kumar versus M/s International Auto Trac Finance Limited), as common questions of law and facts are involved. For reference to record, Criminal Miscellaneous No.8221-M of 2009 (Atul Srivastava versus State of Punjab and another) is being taken up. This petition has been filed under Section 482, Code of Criminal Procedure, praying for quashing of Criminal Complaint No.535/1 dated 18.11.2008 (Annexure P-1), instituted for commission of offences under Sections 409, 420, 384, 385, 342, 506, 120-B, Indian Penal Code, pending in the Court of Judicial Magistrate Ist Class, Ludhiana. The petition also challenges order dated 6.2.2009 (Annexure P-2), vide which the petitioner has been summoned to stand trial. Learned counsel for the parties contend that one of Criminal Miscellaneous No.8221-M of 2009 (O&M) 4 the issues to be considered in this case is whether compliance of sub-section (1) of Section 202, Code of Criminal Procedure, is mandatory or not. It is conceded that judgment rendered by this Court in S.K. Bhowmik v. S.K. Arora, 2007(4) R.C.R. (Criminal) 650, covers the issue. Learned counsel contend that let this bunch of cases be decided in the same terms. Following portion (paras 14 to 16) from the judgment in S.K. Bhowmik's case (supra) is relevant for consideration, and the same reads as under :- “14. 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 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 Magistrate. In Criminal Miscellaneous No.8221-M of 2009 (O&M) 5 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. 15. The argument of Mr. Cheema based on the ground that it would sound improbable for a person to come and visit the office of the petitioner to behave in a manner as alleged, need not be gone into as the case is going back to the Magistrate to hold enquiry/investigation etc. The complaint otherwise can not be quashed on the ground that summoning was done without holding enquiry or investigation as envisaged under Section 202 Cr.P.C. It may not otherwise be open to judge the correctness or otherwise of the allegations made in the complaint in a petition under Section 482 Cr.P.C. Defence plea can also not be considered while exercising revisional jurisdiction or inherent powers. See S. Nihal Singh and others v. Arjan Das, New Delhi, 1983 Cri.L.J.777. 16. As a result, the present petition is partly accepted. The impugned order summoning the petitioner is set-aside. The case would go back to the Magistrate for deciding the case for issuing process afresh by following the mandatory provisions of law under Section 202 Cr.P.C.” This bunch of petitions is disposed of in terms of judgment rendered in S.K. Bhowmik's case (supra), relevant Criminal Miscellaneous No.8221-M of 2009 (O&M) 6 portion whereof has been extracted above. It is made clear that other issues raised on behalf of the petitioners have not been addressed, in view of the fact that summoning order is set aside on the short ground, as noticed above. Before parting with the order, it is directed that the trial court, on account of the delay already caused, shall conclude the proceedings expeditiously. A photostat copy of the order be placed on each of the connected files. September 14, 2011 ( AJAI LAMBA ) Kang JUDGE 1.To be referred to the Reporters or not? 2.Whether the judgment should be reported in the Digest?