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Judgment
Lok Pal Singh, J
Present petition, under section 482 Cr.P.C., is preferred by the petitioners for quashing of the cognizance/ summoning order dated 10.09.2015 and also the proceedings of criminal case no. 1250 of 2015 Narayan Singh Bohra vs. Baba Babu Lal Saini and others under section 498 IPC pending in the court of Chief Judicial Magistrate, Nainital as well as order dated 31.08.2016 passed by Sessions Judge Nainital, in criminal revision no. 116 of 2015, Baba Babu Lal Saini @ Shri Shri 1008 Fakiranand Maharaj vs. State, whereby the revision of appellant no. 1 was dismissed affirming the order dated 10.09.215.
Respondent no. 2 filed complaint against the petitioners with the allegations that respondent no. 2 got married with Vidhya Bohra on 29.04.1997 as per the Hindu rites and rituals. It is also mentioned in the complainant that there is no issue out of the wed-lock. Respondent no. 2 is deployed as Naib Subedar in Indian Army at Goa. It was agreed between respondent no. 2 and his wife that they would proceed for Goa. When respondent no. 2 reached Haldwani and contacted his wife on phone, he came to know that Baba Babu Lal Saini along with his followers enticed away his wife from her parental home to pathankot. It is alleged that when he reached at Pathankot on 05.06.2016 in the Ram Dev Ashram and told his wife to come with him then Baba Babu Lal Saini @ Shri Shri 1008 Fakiranand Maharaj and his followers did marpeet with him.
The averments made in the present application are that due to matrimonial discord between the husband (respondent no. 2) and his wife, the petitioners have been implicated in the present case with false allegation. It is averred that to meet the spiritual calm and happiness, wife of respondent no. 2 visited Ram Dev Ashram situated at Pathankot and decided to left her matrimonial house and engaged herself in worship at Ram Dev Ashram. It is also averred that being unskilled lady and having no source of income she moved an application under section 125 Cr.P.C. before the District Judge (Family Court) Pathankot for seeking maintenance from respondent no. 2.
In support of the complaint case, statement of Pratap Singh Bohara (eye witness), under section 202 Cr.P.C. was recorded. The learned Magistrate, after perusal of the complaint and that of statement of the witness, recorded under section 202 Cr.P.C., passed the summoning order dated 10.09.2015 to summon the petitioners under section 498 IPC.
Feeling aggrieved by the order, the petitioners preferred criminal revision no. 116 of 2015, Baba Babu Lal Saini @ Shri Shri 1008 Fakiranand Maharaj vs. state and another, before the Sessions Judge, Nainital. The learned Sessions Judge vide order dated 31.08.2016 dismissed the revision and affirmed the order dated 10.09.2015 passed by the Chief Judicial Magistrate, Nainital. Hence, this petition under section 482 Cr.P.C.
This Court has passed an interim order in favour of the petitioners that "in case an application for adjournment of the case is moved, the trial court shall consider the same for grant of adjournment".
Counsel for the petitioners would submit that as per the amended provision of section 202 Cr.P.C. it is a bounden duty of the learned Magistrate to conduct an inquiry by the police official or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding or not. Section 202 Cr.P.C. is quoted hereunder:-
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, 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.
Learned counsel for the petitioners further placed reliance upon the judgment of Hon'ble Apex Court in the case of National Bank of Oman vs. Barakara Abdul Azia and another reported in (2013) 2SCC 488 wherein it is held that in cases where accused reside beyond the area over which Magistrate concerned exercise jurisdiction, it is incumbent upon the Magistrate to carry out inquiry or order investigation under section 202 Cr.P.C. before issuing process.
The case law cited by the learned counsel for the petitioner is of no help to the petitioner, as the Hon'ble Apex Court in the judgment of National Bank of Oman (supra), in further paragraphs has held as follows:-
"9. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated inSection 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made our; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
Section 202 of the Cr.P.C. was amended by the Cr.P.C. (Amendment Act 2005) and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction" The notes on clauses for the above-mentioned amendment read as follow:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that the 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 amendment has come into force w.e.f. 23.6.2006 vide notification No.S.O.923(E) dt. 21.6.2006.
The purpose of amendment in section 202 Cr.P.C. is to ascertain that innocent persons are not harassed by unscrupulous persons. There are two situations mentioned in the provisions that the Magistrate himself shall enquire into the matter or direct investigation to be made by police officer or such other persons as he thinks fit. Thus, investigation through the police is to be conducted, when the Magistrate before whom the complaint is filed is not satisfied and the Magistrate thinks it fit that the matter be inquired through police or through other persons. The facts of the Judgment (supra) cited by the learned counsel for the petitioner are entirely different. It was alleged before the Court that just to harass the petitioners, summoning order has been passed and they have been falsely implicated, in the present case as there is no pleading in this regard only it has been stated that wife of respondent no. 2 is living in Ashram.
Serious allegations have been made against the petitioners of enticement of the wife of respondent no. 2, and same has not been denied. Since, the allegations have not been denied at all by the petitioners, they are not entitled to get the benefit of judgment (supra).
The position would be otherwise, if petitioners may challenge the summoning order that they have no concern at all, and the allegations made in the complaint as well as in the statement recorded under section 202 Cr.P.C. are false and have been made just to harass them. Since, the averment made in the complaint have not been denied and admittedly the wife of respondent no. 2 is residing in the Ashram at Pathankot and allegation of enticement have not been rebutted, therefore this Court does not find any illegality and jurisdictional error in the summoning order.
This Court cannot lose sight of the fact that in the present time that the so called Baba are involved in the illegal activities and are influencing and enticing away the girls, women after entering into the house of persons, otherwise there was no occasion for a married woman to leave the house of her husband and decided to live in Ashram.
The Hon'ble Apex Court in the case of Sonu Gupta vs. Deepak Gupta and others reported in (2015) 3SCC 424 has held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs are quoted hereunder:-
"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future.
Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."
Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.
The Hon'ble Apex Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 in Para 28 of the said ruling has held as under:-
"28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
Thus, prima facie, case is made out against the petitioners and on mere technicality of non conducting the investigation through police officer or concerned person will no vitiate the order of summoning, therefore, this Court is not inclined to interfere with the impugned orders passed by the courts below. Learned counsel for the petitioners also fail to show any illegality, perversity or jurisdictional error in the order passed by the courts below.
The petition under section 482 Cr.P.C. lacks merit and is hereby dismissed.