Anil Atray And Others v. Hitender Kumar

 


 


 
 
 

 







 






 



















  











! " 
#!$

%  



 



  !"!#$  


& '

(
)




%    
*'
+ '% (
)




% 


%

& '

 , 
%  

)
%% 


!

-
'
%  % 
!
& 





 $ 
!

(
./
0 

1 23
4'
5!

 '

 $ 
$% 

67  8
 !
& 
/.(
/.(
/(
.(
/.(
/(
 .(
(
 (
(
8(
/(
( (
8/(
8.(
8

9

/



7
0:!


3




  

 

!$$'



 0:!


3
% 
-



;! 
 '


7
 (



!-5!
% '

'

 $

&! 







% $%  

'




 



!

&$ 
<

(
$


% 


 



 









  
9 
:!

 - 9


% 
&$ 
<

$


% 
+

 



% %



!



-
 ''


'

!




$

&$ <


 



-
% 
-


% 
$
 



 

$


6
/  8(
9 


%
9 
!




(


%  

!
'
9




% (
- 4
%


4



% =

 
$$

(
4
) !

-
 $


9


!''

'(
9  '

(

 
!


%

$ 
, 
4

$ 
-

'


" / 8
 


!  
, 
%  

 $
9 

4



)



(
!
-!)
 '!

'

$!


-''


% 
, 
%
$ 

%
$% 

  8
-!




9 

4
, (


% %% 


!

!

& 
80/3



  / >


!



%  
 


% 5! 
 


$% 

-


%


 $
9 
!

- 
, 
%






$%  

)
! 

4 %

 


"!
+
 (
&
.(

, 
)
! 
$
-





)
!

)
?!'$



8 
" !

!-$







!



4


%

!
& 


 
- 
!



% 
'




%  
-
% '

!$$'




0:!


3
 "

)'





!



%  
% !'

 



 ,

% 


!$$'



 0:!


3
9 
% 
9

!

9'


 

& 

  
, 
"=-
&!% $
!


  

  

 !"#$ %&& '

(, )   *

+ ,

 *

  --





 #"

%&& .(( and


!


/ 

 

%2 *3  &144

54 (




 
 & 


 

$ 




!



(

8

9
;!'
-

"=-
&!% $
!


 " 3
% 4'

!'

;! 
#
&4 

 "28. No doubt, the argument predicated on Section 202 of the Cr.P.C. was raised for the first time by A!1 before the High Court. Notwithstanding the same, being a pure legal issue which could be tested on the basis of admitted facts on record, the High Court could have considered this argument on merits. It is a settled proposition of law that a pure legal issue can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter (See : National Textile Corpn. Ltd. Vs. Nareshkumar Badrikumar Jagad; [(2011) 12 SCC 695].

29. We may like to record that though Mr. Bhatt had refuted the arguments founded on Section 202 of Cr.P.C., even he had submitted that in case this Court is satisfied that mandatory requirement of Section 202 is not fulfilled by the learned Magistrate before issuing the process, this Court can direct the Magistrate to do so. Mr. Bhatt, for this purpose, referred to the judgment in the case of the National Bank of Oman.

30. For the aforesaid reasons, Criminal Appeal arising out of SLP (Crl) No. 9318 of 2012 is allowed thereby quashing the notice dated 24 th November, 2009 in respect of A!1 with direction to the learned Magistrate to take up the matter afresh qua A!1 and pass necessary orders as are permissible in law, after following the procedure contained in Section 202, Cr.P.C."

. 
9
;!'
-


"=-
&!% $
!


)$*+#),
)#-
+.

/)#&"01 )'



9 "10. We are of the view that the High Court has correctly held that the above!mentioned amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Code of Criminal Procedure. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of the Code of Criminal Procedure. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance



of process under Section 418 or 420 of the Indian Penal Code. The C.J.M. will pass fresh orders after complying with the procedure laid down in Section 202 Code of Criminal Procedure, within two months from the date of receipt of this order." @!

 


-


!


/ 

" 3


$ 


9'
- )

 "Therefore, in view of the law laid down, on which reliance has been placed by learned counsel for the petitioners, I find that the examination of the complainant and eye witness alone under Section 200 Cr.P.C. cannot be held as the enquiry as prescribed under Section 202 (1) Cr.P.C. Admittedly, in the present case, no enquiry as prescribed under Section 202 (1) Cr.P.C. has been made by the Court and non!compliance of the provisions of Section 202

(1) Cr.P.C., which are mandatory in nature, the summoning order cannot be passed where the respondents are residing outside the jurisdiction of the Court where the complaint was filed."
 "

)'







!



%



4%'
 )9


 



 (


% 
% 

9

!$$'





0:!


3

 



$


$ 
- 4





;! 
 '


7
 (




$




  
9

 9(
-

4'
!



& 


 







&


'



% 4'B   *B+

%

-  *B+