Once Magistrate Orders Inquiry U/S 202 CrPC, Summons Cannot Be Issued Later On Same Material: J&K&L High Court
LIVELAW NEWS NETWORK
30 March 2026 2:35 PM IST
The Jammu & Kashmir and Ladakh High Court has held that if a Magistrate is not satisfied about the sufficiency of material collected while recording preliminary evidence and orders an inquiry under Section 202 of the Code of Criminal Procedure, she/he cannot pass an order summoning the accused at a later stage on the very same material.
The Court was hearing a petition filed under Section 482 CrPC challenging a complaint filed against the petitioners alleging commission of offences under Sections 451, 323, 504, 506 and 34 of the Ranbir Penal Code, which was pending before the Judicial Magistrate Ist Class, Sunderbani. The petitioners also challenged the order whereby the trial Magistrate issued process against them.
The bench of Justice Sanjay Dhar observed,
"once a Magistrate is not satisfied about the sufficiency of material collected by him while recording preliminary evidence, she/he cannot pass an order of summoning the accused at a later stage on the very same material."
According to the allegations in the impugned complaint, the petitioners forcibly encroached upon land belonging to the respondent-complainant. When the respondent resisted the encroachment, the petitioners entered his residential house and beat him with kicks and fists, and also hurled abuses.
After filing of the complaint, the trial Magistrate recorded preliminary evidence of the complainant and one witness. On the same day, the Magistrate ordered an inquiry under Section 202 CrPC through the SHO to ascertain the truthfulness of the allegations. The SHO submitted a report concluding that the allegations were false and that the complaint was filed to wreak vengeance upon the petitioners with whom the complainant had a long-standing enmity.
The trial Magistrate, dissatisfied with the first inquiry report, directed the Inquiry Officer to undertake a fresh inquiry. The SHO again conducted an inquiry and submitted a report concluding that the allegations were based upon falsehood, noting that the neighbours of the complainant had not deposed anything about the alleged occurrence.
Subsequently the trial Magistrate considered the second inquiry report and, after taking into account the preliminary statements of the complainant and his witness, recorded satisfaction that there were sufficient grounds to proceed against the petitioners and issued process.
Court's Observation:
The Court examined the record of the trial Magistrate and noted that after recording preliminary evidence, the Magistrate ordered an inquiry under Section 202 CrPC. The Court observed that this course of action indicated that the Magistrate was not fully satisfied about the truthfulness of the allegations made in the complaint.
The Court noted that the Inquiry Officer conducted an inquiry on two occasions and on both occasions concluded that the allegations were false. Despite these inquiry reports, the trial Magistrate, without collecting any additional material, proceeded to record satisfaction that offences were made out against the petitioners and issued process, the court pointed.
Referring to the Supreme Court judgment in Shiv Jatia v. Gian Chand Malick (2024) 4 SCC 289, the Court observed,
"After recording the evidence of the three witnesses and perusing the documents on record, the learned Magistrate passed the order calling for the report under Section 202 of the Cr.PC. He postponed the issue of the process. The learned Magistrate ought to have waited until the report was received... For issuing the order of summoning, the learned Magistrate could not have relied upon the same material which was before him on 15th December 2011 when he passed the order calling for the report under Section 202 of the Cr.PC. The reason is that, obviously, he was not satisfied that the material was sufficient to pass the summoning order."
The Court noted that in the present case, besides the preliminary evidence recorded on March 4, 2013, the only other material available with the trial Magistrate was the two investigation reports, both of which had raised serious doubts about the truthfulness of the allegations. In the absence of any additional material favouring the case of the complainant, it was not open to the trial Magistrate to record satisfaction about the truthfulness of the allegations, Justice Dhar underscored.
The Court also examined the context of the dispute, noting that petitioner No. 1 had lodged an FIR against the respondent and two witnesses cited in the impugned complaint, which culminated in filing of challan against them. The Court observed that documents placed on record indicated that there was a dispute relating to the land in question between the petitioners on one side and the respondent along with witness on the other.
The Court noted that the two investigation reports submitted by the SHO had categorically stated that none of the neighbours of the respondent-complainant confirmed happening of the alleged occurrence, and the Inquiry Officer found that the complaint was made by the respondent against the petitioners only on account of enmity with them. The Court concluded that the impugned complaint was filed by the respondent against the petitioners to settle a civil dispute and as a counterblast to the FIR lodged by petitioner No. 1 against the respondent and his associates.
In view of these findings the Court held that continuing the complaint against the petitioners would amount to abuse of process of law. Accordingly, the petition succeeded, and the impugned complaint and the proceedings emanating therefrom were quashed.
Case Title: Babu Ram & Ors. Vs Kewal Krishan
Citation: 2026 LiveLaw (JKL)