HIGH COURT OF UTTARAKHAND
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(1.) As per office report, respondent has already been
served, however, none appears on behalf of the respondent.
Undisputedly, petitioner is resident of village
Karondi, Police Station Bhagwanpur, District Haridwar while
complainant is resident of Rishikesh, Dehradun. Learned
Magistrate, Rishikesh was pleased to summon the accused /
petitioner, vide impugned order.
(2.) Order impugned reads as under:
"Record is placed before me. Heard learned counsel
for the complainant. Statement of complainant in support
of the contention of the complaint was recorded under
Section 200 Cr.P.C. and statements of witnesses namely
PW1 Ritesh Chauhan, PW2 Neeraj Kumar were got
recorded under Section 202 Cr.P.C.; four documents were
also produced including copy of agreement, notice and
From perusal the complaint, evidence and
document available on record, prima facie, offence under
Section 420, 406 IPC is made out against the accused,
therefore, accused is liable to be summoned.
Accused Qyauum be summoned under Section
420, 406 IPC for 03.08.2009. Complainant shall take step
within a week. Complainant shall produce list of
witnesses, as required under Section 204 Cr.P.C. List on
the next date fixed."
(3.) Hon'ble Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited, 2013 4 SCC 505 has held as under :-
"Summoning of the accused in a criminal case is a
serious matter. Hence the criminal law cannot be
set into motion as a matter of course. The order of
the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of
the case and the law applicable thereto. The
Magistrate has to record his satisfaction with
regard to the existence of a prima facie case on the
basis of specific allegations made in the complaint
supported by satisfactory evidence and other
material on record. In the present case, in the
summoning order the Magistrate has not recorded
his satisfaction about a prima facie case as against
Respondents 2 to 7 and the role played by them."
Hon'ble Apex Court in the case of National Bank of Oman Vs. Barakara Abdul Aziz and another, 2013 2 SCC 488 has held as under :-
"8. We find no error in the view taken by the High Court
that the C.J.M. Ahmednagar had not carried out any
enquiry or ordered investigation as contemplated under
Section 202 of the Cr.P.C. before issuing the process,
considering the fact that the respondent is a resident of
District Dakshin Kannada, which does not fall within the
jurisdiction of the C.J.M. Ahmednagar. It was, therefore,
incumbent upon him to carry out an enquiry or order
investigation as contemplated under Section 202 of the
Cr.P.C. before issuing the process.
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 in Section 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
(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.
10. Section 202 of the Cr.P.C. was amended by the
Cr.P.C. (Amendment Act 2005) and the following words
"and shall, in a case where the accused is residing
at a place beyond the area in whichhe exercises
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