S. 202 CrPC: Inquiry/Investigation Mandatory Before Process Issuance If Accused Resides Beyond Magistrate's Jurisdiction: Allahabad HC

The Allahabad High Court has clarified that as per Section 202 (1) CrPC, if an accused resides beyond the jurisdictional area of a Magistrate then it is mandatory for such a Magistrate to either inquire into the case himself or direct an investigation to be made, before issuance of process under Section 204 CrPC.

The Bench of Justice Manju Rani Chauhan further observed that as per the provision of Section 202 Cr.P.C. (as amended with effect from 23.06.2006), the requirement is that in those cases, where the accused is residing at a place beyond the area in which the concerned Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an inquiry or investigation before issuing the process.

The case in brief

Essentially, a complaint was made by a lady against her in-laws (petitioners before the Court) submitting that they used to harass her mentally and physically and she was sent back to her parents' house after around 7 months of the marriage.

It was further averred in the complaint that when she came to know that they are not interested in calling her back, she requested them to return her Stree Dhan, however, they did not return the same, therefore, she was moving the instant complaint.

Now, on this complaint, the in-laws/Smt. Geeta And 4 Others (Petitioners) of the complaint were summoned by the Additional Chief Judicial Magistrate/Additional Civil Judge (Sr. Div.), Ghaziabad vide order dated September 15, 2021.

Challenging the said summoning order of the Magistrate, the Petitioners moved the Court with their 482 CrPC Plea seeking to quash the summoning order passed in a case under Section 406 I.P.C.

It was their contention that though the address of the applicants as mentioned in the complaint is Bengaluru, hence they are residents of Bengaluru but the concerned Magistrate sitting at Ghaziabad had summoned the applicants ignoring and had not complied with the provision of Section 202 Cr.P.C., 1973

Lastly, it was submitted that the procedure stipulated in the said provision was mandatory which imposes an obligation on the Magistrate to ensure that before summoning an accused, who resides beyond his jurisdiction, the Magistrate shall make necessary inquiries 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 is sufficient ground to proceed against the accused.

Court's order

At the outset, the Court referred to Apex Court's rulings in Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC, Abhijir Pawar v. Hemant Madhukar Nimbalkar and another, (2017) 2 SCC 528 and Sunil Todi vs. The State of Gujarat, 2021 SCC Online SC 1174 638 to observe thus:

"(Under) Section 202(1) Cr.P.C. the enquiry or investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the concerned Magistrate...In view of the above, the impugned order is not sustainable in the eyes of law and is liable to be quashed."

With this, the application u/s 482 Cr.P.C. was allowed and the impugned order was quashed and the matter is remanded back to the Court below for the further proceeding, in accordance with the law, especially in view of the provisions of Section 202(1) Cr.P.C.

Case title - Smt. Geeta And 4 Others v. State of U.P. and Another
Case citation: 2022 LiveLaw (AB) 57

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