The mandatory requirement of conducting an inquiry under Section 202(1) Cr.P.C. before issuing a summoning order, especially when the accused resides outside the territorial jurisdiction of the Magistrate.

JUDGMENT :

1. Heard Sri Vashu Deo Mishra, learned counsel for the applicant, Sri Anirudh Kumar Singh, learned AGA for the State and perused the record.

2. The instant application under Section 482 Cr.P.C has been instituted, for quashing of the entire proceedings of complaint Case No. 07 of 2021, under Sections 406, 504, 506 IPC, Police Station-Manikpur, District Pratapgarh as well as the summoning order dated 28.10.2021 passed by Additional Chief Judicial Magistrate, Kunda, District Pratapgarh.

3. Factual matrix of the case is that the complainant who is a managing partner of Anuna Education Pvt. Ltd, had entered into an agreement with the complainant’s “NSQF Franchisees”. As per the agreement, the complainant has accorded training to the students under the scheme namely Prime Minister Kaushal Vikas Yojana (P.M.K.V.Y.), which runs under the National Skill Development Corporation (N.S.D.C.). The complainant had served but the applicant’s company did not pay the full wages as was required to be paid as per terms and conditions of said scheme. Being aggrieved, an application under Section 156(3) Cr.P.C. was instituted before the Magistrate, wherein a date was fixed on 08.12.2020. On 8th February, 2021 it was treated as complaint case for recording statement of complainant under Section 200 Cr.P.C.

4. The statement of the complainant was recorded under Section 200 Cr.P.C. and the statement of witnesses namely Sanjay Kumar and Manoj Kumar were also recorded on 8th March 2021. Allegedly the present applicant resides outside the territorial jurisdiction of the Magistrate concerned and complainant itself arrayed the present applicant as respondent by transcribing the address, which is outside the territorial jurisdiction of the Magistrate concerned.

5. The submission of learned counsel for the applicant is that the mandate of Section 202 Cr.P.C. is very specific with regard to the provisions that as soon, a complaint comes before a Magistrate, he will enquire or pass an order for an investigation, if the accused is residing outside the territorial jurisdiction of the Court concerned.

6. Provisions of Section 202 Cr.P.C. is read as under:-

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.

7. Learned counsel for the applicant has drawn attention towards an amendment named as Code of Criminal Procedure (Amendment) Act, 2005 (Central Act 25 of 2005), which came into force w.e.f. 23rd June 2006. He submits that in fact the intent of legislature is to put safeguard to proposed accuse