IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE 2021
BEFORE
THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION No.7414 OF 2021 (GM-RES)
BETWEEN
Amitabh Sinha
Son of Late M.C.Sinha
Aged about 44 years,
Permanent resident of No.179 Tiwaripur First, Adarsh Nagar,Kanpur-208010 U.P.
Presently residing at No.1253, Sector-2,R.K.Puram, New Delhi-110022.…Petitioner
(By Sri. D.R.Ravishankar, Advocate)
AND
Sunita Motwani,
W/o. Amitabh Sinha,
Aged about 55 years,
Flat No.D7.02,Nitesh Hyde Park Apartments No.341/1M1, 2nd Cross Road,Hulimavu, Bengaluru-560076.…Respondent
(Smt. Sunita Motwani, Party-in-person)
This Writ Petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. praying to quash the order dated 16.01.2021 passed by the I Additional Chief Metropolitan Magistrate, Bengaluru, in PCR No.239/2021 vide annexure H and etc.
This Writ petition having been heard and reserved on 16.06.2021, coming on for pronouncement this day, through video conferencing the court pronounced the following:
ORDER
In this Writ Petition under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, the petitioner has sought to quash the orders dated 16.1.2021 and 8.3.2021 passed by I Additional Chief Metropolitan Magistrate, Bengaluru, (for short referred to as ‘ACMM’) in PCR No. 239/2021 (C.C.5924/2021).
2. The events that led to this Writ Petition being filed are – on 16.1.2021, the learned ACMM, upon a complaint presented by the respondent, took cognizance for the offences punishable under sections 461, 465, 468, 420, 471, 500 of the Indian Penal Code (for short referred to as ‘IPC’) read with section 66 of the Information Technology Act (for short referred to as ‘I.T. Act’). The respondent is the wife of the petitioner. The bickering in their matrimonial life led to many disputes between them, one among them is the complaint referred to above. After taking cognizance for the offences stated above, the learned ACMM recorded the sworn statement of respondent on 25.1.2021. On 16.2.2021, the respondent made an application under section 204 read with sections 190 and 105 of the Code of Criminal Procedure (for short referred to as ‘Cr.P.C’) for issuance of process against the petitioner. After hearing on this application, on 8.3.2021 the learned ACMM passed a detailed order to register a case against the petitioner for the offence under section 420 read with section 66 of the I.T Act and ordered for issuance of summons to the petitioner. Therefore, the petitioner is before this court.
3. The respondent has filed detail statement of objections and besides this, on 15.06.2021, 21.06.2021 and 22.6.2021 she submitted her written arguments. I have heard the arguments of Sri D.R.Ravishankar, learned counsel for the petitioner. The respondent who appeared in person also argued at length.
4. Sri Ravishankar emphasized the point that the petitioner is a resident of New Delhi. The complaint is filed in Bengaluru court. It is evident that the petitioner is residing at a place beyond the jurisdiction of the ACMM. Referring to section 202 of Cr.P.C he argued that if an accused is resident of a place beyond the area in which the Magistrate exercises his jurisdiction, he should postpone the issuance of process against the accused and inquire into the matter himself or direct investigation to be made by a police officer or by such other person for the propose of deciding whether or not there is sufficient ground for proceeding further. It was his submission that the ACMM has not followed this procedure. After taking cognizance on 16.1.2021, he recorded the statement of the respondent and then by passing an order on 8.3.2021 he ordered for issuance of process against the petitioner without holding an inquiry as contemplated under section 202 of Cr.P.C. Therefore, issuance of process is bad in law and therefore taking of cognizance as also order of issuance of process are to be quashed. Referring to a judgment of the Supreme Court in the case of VIJAY DHANUKA AND OTHERS vs NAJIMA MAMTAJ AND OTHERS[(2014) 14 SCC 638], he submitted that compliance of the procedure prescribed under section 202 Cr.P.C is mandatory. If it is found that the procedure is not followed, the order of taking cognizance and issuance of process are to be quashed. He further argued that when there is an offence alleged under section 66 of the I.T. Act, it was necessary for the ACMM to have ordered for inquiry to arrive at a prima facie satisfaction whether there is material for such an offence having been taken place or not. The ACMM himself cannot arrive at a conclusion based on the sworn statement of the complainant for issuance of process.
5. The main contentions of the respondent are that she had to file complaint against her husband as he intentionally deleted his company’s income from its website. He did so to escape from paying maintenance to her. This amounted to cheating and also an offence punishable under section 66 of the I.T. Act. She submitted that the learned ACMM has not committed any error in taking cognizance of the offences alleged in the complaint. She was examined on oath and finding that there are prima facie materials, the learned Judge issued process against the petitioner who is the accused in the complaint. She referred to some documents marked Annexures R-3 to R-15 to contend that all these documents would disclose compelling evidence against the petitioner. Her complaint is not a counter action to the complaint filed by the petitioner registered as PCR.3502/2020, the allegations made in her complaint are independent of allegations made against her in PCR.3502/2020. She further submitted by referring to paragraph 10 in her written argument dated 15.6.2021 that issuance of process to the petitioner is strictly in accordance with law, the accused i..e, the petitioner is residing within the limits of learned ACMM. If really he is not residing within the jurisdiction of ACMM, it amounts to violating the conditions of bail granted in C.C.No.1298/2018. She too has mainly placed reliance of the judgment of the Hon’ble Supreme Court in the case of Vijay Dhanuka (supra). It is further contended in the written arguments that examination of all the witnesses are not necessary at the stage of inquiry under Section 202 (2) of Cr.P.C. and in this regard she has referred to some judgments, Shivjee Singh vs Nagendra Tiwary and Others [AIR 2010 SC 2261], Pradeep vs State OF UP [AIR 2012 (1) JIC 104 (All.)] and Gottipati Subha Naidu vs Talhiri Mahalakshamma [2001 Crl.LJ 1315 (AP – FB]. She further contended by referring to Section 134 of Evidence Act that it is not the number of witnesses, but quality that matters.
6. In the written argument submitted by her on 21.06.2021, she has contended that she has already stated in her statement of objections that she has placed undisputed authenticated documentary evidence indicating commission of offence by the petitioner under Section 420 IPC read with Section 66 of the I.T Act. Again in paragraph 10 of the said written arguments, it is stated by her that PCR.No.3502/2020 and PCR.No.239/2021 are independent cases. PCR.3502/2020 is a case without any single documentary evidence and she has been implicated falsely. It was transferred to the police station for enquiry without having jurisdiction in violation of Section 177 of Cr.P.C. and so far the police have not filed final report. She has referred to Section 210 of Cr.P.C. to contend that even if two cases are same, once cognizance is taken in a complaint case, proceedings do not get vitiated. In this written argument she has placed reliance on the judgments of the Supreme Court in the cases of Pal @ Palla vs State of Uttar Pradesh [(2010) 10 SCC 123], R.K. Khanna vs State and others [(2003) 11 SCC 758], Nupur Talwar vs Central Bureau of Investigation, Delhi and Another [(2012) 2 SCC 188] and Bhushan Kumar And another vs State (NCT of Delhi) and Another [(2012) 5 SCC 424]. In the written arguments that she submitted on 22.6.2021, she has made reference to authorities which have already been cited by her in her earlier written arguments.
7. When she was arguing, she was questioned whether she had any witnesses to be examined in support of her case; and to this question, her answer was that she had many witnesses to be examined.
8. Having heard Sri. D.R. Ravishankar and the respondent, the question that arises for consideration is :
Has the ACMM Committed an error in not following the procedure contemplated under Section 202 Cr.P.C. before issuing process against the petitioner?
9. I have considered the points of arguments.
The respondent, in her statement of objections, has referred to many aspects touching the merits of her complaint and has also referred to many rulings that may be applied after conclusion of trial. The issue in this writ petition is on a narrow point relating to procedure to be followed by a Magistrate under Section 202(1) of Cr.P.C if the accused is residing at a place beyond the jurisdiction of the court. Therefore it is not necessary to refer to all those rulings, however I have examined the applicability of certain other rulings which she has referred to in her final written arguments filed on 21.6.2021.
10. There is no dispute about the fact that the petitioner is a resident of New Delhi, the respondent, herself in her complaint has given her husband’s i.e., petitioner herein, address as a resident of House No.1253, Army Officers Type IV Quarters, R.K.Puram, Sector 2, New Delhi-110022. It is evident that he is residing at a place beyond the jurisdiction of the court of I Additional Chief Metropolitan Magistrate Bengaluru, where the respondent has filed the complaint under Section 200 Cr.P.C.
11. The order sheet (proceedings sheet) in the complaint registered as PCR 239/2021 shows that the respondent presented the complaint before the ACMM on 5.1.2021 and he took cognizance on 16.1.2021 for the offences punishable under sections 461, 465, 468, 420, 471 and 500 of IPC read with section 66 of the I.T Act. On 16.2.2021, the respondent, quite strangely, made an application under Sections 204 and 190 read with section 105 Cr.P.C., upon which she filed her written arguments and then on 08.3.2021, the ACMM passed a detailed order allowing the application and ordering issuance of summons to the accused i.e., the petitioner. Actually making an application under sections 204 and 190 read with section 105 Cr.P.C. was not necessary, but any way, the respondent is conducting the case herself, she must have felt it necessary to make such an application, be that as it may. But, it can be apparently made out from the order sheet that the ACMM has not followed the procedure contemplated under Section 202(1) Cr.P.C. which deals with postponement of issue of process. Section 202 was amended by Act 25/2005 (w.e.f.23.06.2006) inserting a provision with regard to procedure to be followed if the accused is residing at a place beyond the area of jurisdiction of the Magistrate. Section 202 contemplates that if the Magistrate, after recording the sworn statement of the complainant, still thinks that further inquiry is necessary in order to ascertain about the existence of prima-facie case for issuing process against the accused, he may conduct an inquiry. In this procedure there is a marked difference; in case an accused is residing in a place within the jurisdiction of the Magistrate, the inquiry is not mandatory, because of the presence of the word ‘may’, but if the accused is residing at a place beyond the area of jurisdiction of Magistrate, inquiry is to be held mandatorily as denoted by the word ‘shall’. The Supreme Court has made this position very clear in its judgment in Vijay Dhanuka. It is held, “12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” was inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd of June, 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:
“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.”
The use of the expression ‘shall’
prima facie makes the inquiry or theinvestigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory.
The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.”
12. The respondent has also placed reliance on para 14 of the same judgment, which is extracted below :-
“14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word “inquiry” has been defined under Section 2(g) of the Code, the same reads as follows:
“2.(g)”inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
“It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.”
13. It appears that the respondent wants to emphasize that recording of sworn statement also falls within the ambit of ‘inquiry’ as defined in Section 2(g) of Cr.P.C., and since her sworn statement has already been recorded, further inquiry is not necessary. Indeed, recording of sworn statement is also an inquiry, but what section 202 Cr.P.C. contemplates is something more. The words ‘if any’ found in proviso
(b) to Section 200(1) Cr.P.C. indicate that the witnesses need to be examined if there are any. The Magistrate has two other options for holding inquiry; he can direct an investigation by a police officer or he can get the investigation done by such other person as he thinks fit. But the procedure under Section 202 of Cr.P.C. is to be followed mandatorily.
14. In the case of Bhushan Kumar and Another vs. State (NCT of Delhi) and Another (supra), the questions before the Hon’ble Supreme Court were:
“9. (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear?
(b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same?”
15. The Hon’ble Supreme Court, in the case of Shivjee Singh (supra) examined the question as to mode of inquiry to be held in the light of proviso to Section 202(2) Cr.P.C., if the offences alleged in the complaint are exclusively triable by sessions court. Therefore these two rulings are of no avail to the respondent. But it is note worthy that in Shivjee Singh also, it is clearly held “By Amendment Act No.25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the concerned Magistrate”.
16. The respondent has placed reliance on a decision of a coordinate bench of this court in the case of S.Natarajan vs. M/s. Sarvamangala Enterprises (Criminal Petition Nos.7162/2017 c/w 7163/2017). In this case, by referring to the judgment of the Supreme Court in Vijay Dhanuka, it has been held:
“7. Thus, from a plain reading of the above provision it is clear that every inquiry other than a trial conducted by a Magistrate or a Court would fall within the four corners of inquiry. There is no specific mode or manner of inquiry provided under Section 202 of Cr.P.C. It all depends on the complaint which is presented before the jurisdictional Magistrate under Section 200 Cr.P.C. to hold such inquiry as deemed fit or order for investigation in the event of accused not residing within the jurisdiction of the said Magistrate or residing outside the jurisdiction of the Court.”
17. In the above case, complaint was filed for an offence under Section 138 of Negotiable Instruments Act against the accused residing in Tamilnadu. After recording the sworn statement of the complainant and perusing the documents, the Magistrate issued process against the accused. When this order was challenged before this court under Section 482 Cr.P.C., it was held that the inquiry conducted by the Magistrate by examining the complainant (i.e., recording of sworn statement) and perusing the document would suffice the requirement of Section 202 Cr.P.C. Yes, examining the complainant under Section 200 Cr.P.C. is also an inquiry, but necessity to conduct further inquiry as contemplated under Section 202, if the accused resides at a place beyond his jurisdiction, arises if the complainant, in addition to himself, has cited the names of other persons as witnesses. If there are no witnesses, he may resort to ordering investigation by a police officer or by any other person if the circumstances warrant.
18. In the case on hand, the respondent has not annexed ‘list of witnesses’ to her complaint, but while arguing she submitted that she had some witnesses to be examined. If this is so, the Magistrate has to examine all or any of them.
19. The next question is whether this petition is to be allowed. Though the petitioner has sought quashing of the order taking cognizance passed on 16.1.2021, any infirmity in that order was not pointed by Sri. D.R.Ravishankar. As stated above, he confined his argument to infraction of the procedure contemplated under section 202 Cr.P.C. There is no denial that there is procedural infraction, but it can be set right. If the order of taking cognizance is quashed, it will have the effect of obliterating the complainant, which will result in injustice to the respondent. Instead, the order dated 8.3.2021 alone can be quashed and the ACMM can be directed to conduct an inquiry under section 202 Cr.P.C. The respondent can file list of witnesses so that the ACMM may examine the witnesses or he may order for investigation as contemplated under section 202 Cr.P.C. Therefore, the following order : –
(i) Writ Petition is partly allowed. (ii) Writ Petition as regards quashing the order dated 16.1.2021
(Annexure-H) is dismissed.
(iii) Order dated 8.3.2021 (Annexure-J) is quashed.
(iv) The Magistrate is directed to follow the procedure contemplated under section 202 Cr.P.C before taking a decision to issue process to the accused.