QYAUUM Vs. DEVENDRA SOOD
LAWS(UTN)-2013-8-66
HIGH COURT OF UTTARAKHAND
Decided on August 01,2013

Qyauum Appellant
VERSUS
Devendra Sood Respondents

JUDGEMENT

- (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 postal receipt. 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 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. 10. 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 whichhe exercises jurisdiction" ;


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