Safiya Malik

The High Court of Uttarakhand, Single Bench of Justice Ashish Naithani, has held that a Magistrate is statutorily required to postpone issuance of process and conduct an enquiry or direct investigation before summoning an accused who resides outside the court's territorial jurisdiction, and that this obligation applies equally to cheque dishonour cases under the Negotiable Instruments Act. The Court quashed a summoning order issued against a contractor-accused in a dispute arising from an allegedly failed construction agreement, finding that the Magistrate had proceeded to summon the accused without fulfilling this mandatory procedural condition precedent.

The respondent filed a complaint under Section 138 of the Negotiable Instruments Act alleging that he had paid Rs. 20 lakhs in cash to the applicant for construction of a residential house. Upon the applicant's failure to carry out the construction, two cheques of Rs. 10 lakhs each dated 18 June 2022 were issued, which were dishonoured on presentation due to insufficiency of funds. After issuance of statutory notice and non-payment, the complaint was filed before the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar, whereupon the Magistrate summoned the applicant by order dated 29 July 2022.

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It was undisputed that the applicant resided in District Nainital, whereas the complaint was filed and entertained at Khatima, District Udham Singh Nagar. The summoning order did not reflect that any enquiry or investigation under Section 202 Cr.P.C. was conducted prior to issuance of process.

The applicant challenged the summoning order under Section 482 Cr.P.C. on the ground of non-compliance of Section 202 Cr.P.C., contending that the order was mechanical and non-speaking and that the complaint arose from a malicious prosecution connected to a prior civil dispute. The respondent contended that the complaint disclosed all essential ingredients of Section 138, that the pleas raised were matters of defence triable only during trial, and that statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act operated in the complainant's favour.

The Court recorded that the core issue was not the correctness of the allegations on merits, but whether the summoning order suffered from any fundamental legal infirmity warranting interference under Section 482 Cr.P.C. It stated: "It is well settled that the inherent powers of this Court are to be exercised sparingly; however, where the very initiation of proceedings is vitiated by non-compliance of a mandatory statutory safeguard, the High Court would be justified in stepping in to prevent abuse of the process of court."

On the requirement under Section 202 Cr.P.C., the Court stated: "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."

On perusal of the summoning order, the Court recorded: "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."

The Court further stated: "The defect pointed out is not factual but procedural and jurisdictional. When a mandatory condition precedent to issuance of process has not been fulfilled, the continuation of criminal proceedings would amount to permitting prosecution founded upon an invalid exercise of jurisdiction."

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The Court directed: "The application under Section 482 Cr.P.C. is allowed. The summoning order dated 29.07.2022 passed by the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar in Complaint Case No.1012 of 2022 (Bhawan Dutt Bhatt vs. Bhim Singh) is hereby quashed."

"Consequently, the proceedings of the said complaint case are also quashed. However, it is made clear that this order shall not preclude the Respondent from pursuing his remedy in accordance with law, and it shall be open to the learned Magistrate to proceed afresh in the matter, if so advised, strictly in accordance with law, after due compliance of Section 202 Cr.P.C. The interim order stands vacated."

Advocates Representing the Parties:

For the Applicant: Mr. Sumit Bajaj, learned counsel for the Applicant

For the Respondent: Mr. B.S. Kathayat, learned counsel for the Respondent

Case Title: Bhim Singh v. Bhawan Dutt Bhatt

Neutral Citation: 2026:UHC:1453

Case Number: Criminal Misc. Application No. 1721 of 2022

Bench: Justice Ashish Naithani