S. 202 CrPC | Magistrate Bound To Inquire Before Issuing Summons To Accused Residing Beyond Territorial Jurisdiction: Uttarakhand HC
The Uttarakhand High Court has reiterated that it is mandatory for a Magistrate under Section 202 of the Code of Criminal Procedure ('CrPC') to postpone issuance of process and either inquire or direct investigation to be made for the purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused for issuing summons.A Bench of Justice Ashish Naithani was...
The Uttarakhand High Court has reiterated that it is mandatory for a Magistrate under Section 202 of the Code of Criminal Procedure ('CrPC') to postpone issuance of process and either inquire or direct investigation to be made for the purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused for issuing summons.
A Bench of Justice Ashish Naithani was of the view that aforesaid procedural safeguard is also mandatory in cases of dishonour of cheque under Section 138 of the Negotiable Instruments Act ('NI Act'). Therefore, non-postponement of issuance of process in a case involving an accused residing beyond the Magistrate's territorial jurisdiction is a fundamental procedural irregularity. Thus, the Judge observed–
“In such circumstances, the proviso to Section 202 Cr.P.C. clearly mandates that before issuance of process, the Magistrate “shall” postpone the same and either conduct an enquiry himself or direct an investigation for the purpose of deciding whether sufficient ground exists to proceed. This requirement is not an empty formality; rather, it is a substantive safeguard intended to protect persons residing beyond the territorial jurisdiction of the court from being summoned in a mechanical manner.”
The respondent herein filed a complaint under Section 138 of the NI Act alleging that he had paid a total amount of Rs. 20 lakhs in cash to the applicant for construction of a residential house. Upon failure to carry out the construction, two cheques of Rs. 10 lakhs each were issued by the applicant to return the amount. However, the cheques were dishonoured on presentation due to insufficiency of funds.
After issuance of statutory notice and non-payment, the complaint was filed. The Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar Magistrate summoned the applicant. Notably, even though the applicant is a resident of District Nainital, the complaint was filed and entertained by the Court at Khatima, District Udham Singh Nagar.
The applicant challenged issuance of summons to him inter alia on the main ground of non-compliance of the mandatory procedure prescribed under Section 202, CrPC. Pertinently, Section 202 reads as follows:
“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, in a case where the accused is residing at a place beyond the area in which he 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.”
The core moot question which arose for consideration was whether the impugned summoning order suffered from any fundamental legal infirmity for non-compliance of the mandatory procedure under Section 202 CrPC, warranting interference under Section 482.
Justice Naithani underlined that Section 202 employs the term “shall” which indicates a mandate, leaving no room for discretion to be exercised by the Magistrate. Accordingly, he held–
“A perusal of the summoning order dated 29.07.2022 shows that the learned Magistrate has not adverted to Section 202 Cr.P.C. at all, nor does the order reflect that any enquiry or investigation was conducted prior to issuance of process. The order merely notices the allegations and proceeds to summon the Applicant. There is nothing on record to indicate application of judicial mind to the statutory requirement or to the necessity of preliminary verification. Such an omission goes to the root of the matter and renders the summoning order legally unsustainable.”
Resultantly, the Court was of the view that the continuation of criminal proceedings would amount to permitting prosecution founded upon an invalid exercise of jurisdiction. Therefore, the impugned summons order as well as the pending criminal proceedings were quashed. The respondent was given liberty to proceed against the applicant afresh.
Case Title: Bhim Singh v. Bhawan Dutt Bhatt
Case No: Criminal Misc. Application No.1721 of 2022
Date of Judgment: February 27, 2026
Counsel for the Applicant: Mr. Sumit Bajaj, Advocate
Counsel for the Respondent: Mr. B.S. Kathayat, Advocate