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HIGH COURT OF ALLAHABAD
RAJEEV MISRA
SIYA RAM MAURYA – Appellant
Versus
State – Respondent
A482/29585/2021
The procedure under Section 202 Cr.P.C. is not applicable to summary trial cases like the one under Section 138 of the Negotiable Instruments Act.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 202 - SUMMONING ORDER - APPLICABILITY IN SUMMARY TRIALS
Fact of the Case:
The applicant challenged a summoning order issued by the Additional Chief Judicial Magistrate-III, Jaunpur, in a complaint case under Section 138 of the Negotiable Instruments Act. The applicant had earlier filed an application under Section 482 Cr.P.C., which was allowed by this Court on the ground that the Magistrate had not conducted a preliminary inquiry as required under Section 202 Cr.P.C. before issuing the summoning order.
Finding of the Court:
The court held that the procedure provided for a complaint case in Sections 200 to 204 Cr.P.C. are not applicable to summary trial cases like the one under Section 138 of the Negotiable Instruments Act. The purpose of a police report in such cases is only to ascertain the veracity of the allegations made in the complaint.
Issues: Whether the procedure under Section 202 Cr.P.C. is applicable to summary trial cases like the one under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court relied on the Supreme Court judgment in State of Punjab v. Baldev Singh, (2012) 1 SCC 416, which held that the procedure under Section 202 Cr.P.C. is not applicable to summary trial cases. The court also noted that the applicant had not disputed the liability arising out of the disputed cheque or raised a plea that the court below had no jurisdiction to try him.
Final Decision: The court dismissed the application, holding that the summoning order was valid and that the Magistrate had not erred in not conducting a preliminary inquiry under Section 202 Cr.P.C.
Court No. - 80
Case :- APPLICATION U/S 482 No. - 29585 of 2021
Applicant :- Siya Ram Maurya
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Yogendra Kumar,Sher Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Sri Sher Singh, learned counsel for the applicant, learned
A.G.A. for the State and perused the records.
This application under Section 482 Cr.P.C. has been filed
challenging the summoning order dated 09.11.2021 passed by
Additional Chief Judicial Magistrate-III, Jaunpur in Complaint
Case No. 07 of 2019 (Ramapati Vs. Siya Ram) under Sections
138 of N.I. Act, P.S. Singramau, District Jaunpur.
Learned counsel for the applicant contends that applicant had
earlier approached this Court by filing Application U/S 482 No.
20901 of 2019, which was disposed of finally vide order dated
27.05.2019. For ready reference order dated 27.05.2019 is
reproduced hereinbelow:-
"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the
record.
This application under Section 482 Cr.P.C. has been filed to set aside the summoning
order dated 19.3.2019, passed by learned Additional Chief Judicial Magistrate-III,
Jaunpur, under Section 138 N.I. Act in Complaint Case No. 07/2019 (Ramapati vs. Siya
Ram).
Learned counsel for the applicant submits that in this case without following the
provisions of Section- 202 Cr.P.C., straightway summoning order has been passed by the
learned Additional Chief Judicial Magistrate-III, Jaunpur on count that the applicant
happens to be resident of Mumbai beyond the jurisdiction of the Magistrate concerned at
Jaunpur. The proper inquiry which was required to be conducted by the Magistrate was
not gone into and this way the summoning order suffers from gross irregularity as well as
the same is erroneous.
Also heard the learned A.G.A.
Considered the submissions and also considered the law as provided under Section- 202
Cr.P.C., obviously in cases where the Magistrate concerned lacks the territorial
jurisdiction and if a complaint has been made against such person, who resides outside
such jurisdiction then some preliminary inquiry into the charge is required to be made
only after recording of the statement of the complainant and the witnesses, but prior to
the issuance of the summons on the face, the summoning order dated 19.03.2019 is
absolutely silent on the point of any inquiry being conducted either personally or through
any agency by the Magistrate. Consequently, there is gross violation of the mandate
contained under Section- 202 Cr.P.C. and the summoning order dated 19.03.2019 cannot
be sustained as such and the same is quashed.
It is required that the Magistrate will follow the procedure prescribed under Section 202
Cr.P.C. and then he will proceed further in accordance with law.
Accordingly, the present application is allowed.
In case, the opposite party no.2 has any grievance, he will file an appropriate application
before this Court.
Observation made shall have no bearing on the merit of the case."
Learned counsel for applicant contends that court below has not
complied with the directions issued by this Court vide order
dated 27.05.2019 and, therefore, the impugned summoning
order dated 09.11.2021 passed by Additional Chief Judicial
Magistrate-III, Jaunpur is wholly illegal and therefore liable to
be quashed by this Court.
Per contra learned A.G.A. has opposed the present application.
He contends that proceedings under Section 138 N.I. Act are
summary in nature and therefore they are required to be
conducted as a summary trial case. Consequently the procedure
provided for a complaint case in Section 200 to 204 Cr.P.C. are
not applicable.
It is then submitted that a police report is called for by a
Magistrate in a complaint case where the accused person in the
complaint is residing outside the territorial jurisdiction of the
Court. The purpose of such police report is
