Point of Law : Magistrate had issued summons without meeting mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned.

JUDGMENT :

1. Heard Sri Rohit Kumar Tripathi and Sri Rajesh Kumar, learned counsel for the petitioners and learned AGA.

2. In view of the proposed order notice to opposite party no. 2 is dispensed with.

3. By means of this petition the petitioners have prayed for quashing the summoning order dated 31.5.2019 (Annexure no. 1) and N.B.W. order dated 1.11.2021 passed by the C.J.M., Lucknow summoning the petitioners in Complaint Case No. 5637/2018 u/s 500,501 IPC, P.S. Gautampalli, District Lucknow as well as entire criminal proceedings of the aforesaid criminal case.

4. The contention of learned counsel for the petitioner is that the petitioner nos. 2 and 3 are the resident of New Delhi and Bangalore respectively. On the complaint filed by opposite party no. 2 the learned C.J.M., Lucknow has summoned all the petitioners vide impugned order dated 31.5.2019. As per learned counsel for the petitioner while summoning the petitioners no. 2 and 3 who are residing outside the territory of the court from where the summoning order has been issued, the learned court-below has committed manifest error of law inasmuch as section 202 Cr.P.C. clearly mandates that in case any accused person is residing at a place beyond the area in which he exercises his jurisdiction, shall postpone the issue of process against the accused and either enquire into the case himself or direct the investigation to be made by the police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings. For the convenience section 202 Cr.P.C. is being reproduced herein-below:

"202. 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 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 and 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."

5. Learned counsel for the petitioner has submitted that the aforesaid mandatory condition has been inserted in section 202 Cr.P.C. by Act no. 25 of 2002, w.e.f 23.6.2006. Therefore, before issuing summons, particularly to petitioner nos. 2 and 3 the Magistrate should have enquired into the case himself or should have directed for investigation to be made by the police officer. Since such mandatory exercise has been avoided by the Magistrate while issuing the summoning orders against the petitioner nos. 2 and 3, the impugned order dated 31.5.2019 vitiates and the same is liable to be quashed at the threshold.

6. In support of his aforesaid contention the learned counsel for the petitioner has drawn attention of this Court towards National Bank of Oman vs. Barakara Abdul Aziz and another (2013) 2 Supreme Court Cases 4