Magistrate Should Stay Proceedings U/s. 210 Of CrPC If It Appears That Police Is Investigating The Same Incident- Allahabad HC

The Allahabad High Court, Lucknow Bench has held that as per Section 210 of the Criminal Procedure Code (CrPC), the Magistrate shall stay the proceeding of a case where investigation by police for the same incident is in progress.

The Court ruled this in an application filed with a prayer to stay the entire proceedings in a complaint case under Section 498-A and 323 of the Indian Penal Code (IPC) and Section 4 of the Dowry Prohibition Act (D.P. Act) before the Civil Judge along with the summoning order.

A Single Bench of Justice Shree Prakash Singh observed, “When this court examined the contention raised by the learned counsels for the applicants that whether there is any violation of mandate of Section 210 of Cr.P.C., it reveals from the record that after lodging the complaint on 31.1.2018, an F.I.R. was lodged at 16.2.2018, for the same incident, whereas the procedure prescribed under Section 210 of Cr.P.C. is very specific that if the case is instituted otherwise than the police report and it appears to the Magistrate during the course of enquiry or trial that an investigation by the police is in progress which is the subject matter of the enquiry or trial held by him, the Magistrate shall stay proceeding of such enquiry or trial and call for a report from the police conducting such investigation but so far as the present case is concerned, the learned trial court ignoring the provisions of Section 210 Cr.P.C., proceeded in the matter and has summoned the present applicants under Sections 498A, 323 I.P.C. and Section 4 of the Dowry Prohibition Act.”

The Bench also referred to the case of Abhijit Pawar v. Hemant Madhukar Nimbalkar and another, (2017) 3 SCC 528, in which it was held that requirement of conducting enquiry or directing investigation before issuing process is not an empty formality and, therefore, the Magistrate or court is to follow the 'enquiry' other than the trial under the Code, though it is not prescribed in Section 202 CrPC that what would be specific mode or manner of enquiry.

Advocate Jageshwari Prasad Mathur represented the applicants while AGAs Aniruddh Kumar Singh and Sanjay Kumar Yadav and Advocate Sayyed Farooq Ahmad represented the opposite parties.

Facts of the Case

In 2012, the opposite party got married with the son of applicant and as the said son was working in Saudi Arabia, she was willing to live with him over there. When the applicant’s son left his wife (opposite party) in India and went to Saudi Arabia, she started creating trouble in the entire family and went to live separately at Balaganj and then to her parents' home at Unnao.

Thereafter, a complaint was filed. Further, an FIR was also lodged in 2018. The Trial Court passed an order and summoned the applicant under Section 498A and 323 IPC and Section 4 of the D.P. Act which was under challenge in the application filed before the High Court. The counsel for the applicants submitted before the court that two criminal proceedings were initiated simultaneously and that the Trial Court violated the mandate of Section 202(1) of CrPC.

The High Court after hearing the contentions of the counsel noted, “… so far the plea is raised that the provisions of Section 202 (1) Cr.P.C. has been violated, it reveals from the record that the statement of the complainant and the witness under Sections 200 and 202 Cr.P.C., respectively, have been recorded, wherein there is no whisper regarding the genuineness of the applicants/accused persons and their address as the provision prescribed under Section 202 (1) clearly speaks that if the proposed accused are living outside territorial jurisdiction of Magistrate concerned, he shall make an enquiry or investigation though if the statement of the witnesses or complainant are enough to show the genuineness of such proposed accused persons, no further investigation or enquiry is required.”

The Court said that the reasons essentially be recorded in the summoning order, if the matter is arising out of complaint case, and hence, the reasons have not been recorded, the same vitiates in the eyes of the law. It held that the summoning order passed by the trial court is against the settled proposition of law.

Accordingly, the High Court set aside the summoning order, remitted the matter to the trial court to pass a fresh order within 45 days, and allowed the instant application.

Cause Title- Mohammad Ayub Rizvi and Others v. Salma Khan and Another (Neutral Citation: 2023:AHC-LKO:58738)

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