Applicability of S. 202 of the CrPC in Summoning an Accused Residing Outside the Territorial Jurisdiction of the Court

Prefatory Note

In the case of the High Court of Sandeep Miglani v Union of India*[i] dated 04.06.2024, the Allahabad High Court (‘High Court) observed the applicability of s. 202 of the Criminal Procedure Code, 1973 (‘CrPC’) in the context of summoning an accused residing outside the territorial jurisdiction of the court, specifically within the framework of the Prohibition of Benami Property Transaction Act, 1988 (‘Benami Act’*). This decision has significant implications for the procedural requirements under s. 202 of CrPC, especially in cases initiated by public servants.

Facts of the Case

• A search and seizure operation conducted on 18.01.2017 revealed that Shyam Trading Company ('STC'), a proprietorship of Ghanshyam Patel, had deposited Rs. 30 lakhs in cash into its account at J&K Bank, Ghaziabad, on 12.11.2016. On the same day, Rs. 7.50 lakhs were transferred to the applicant's bank account, Sandeep Miglani, maintained with Axis Bank, Delhi.

• Ghanshyam Patel denied ownership of the deposited amount, leading to an inquiry by the Benami Prohibition Unit, Kanpur. During this inquiry, the applicant admitted on oath that the Rs. 7.50 lakhs transferred to his account was his unaccounted cash, deposited during the demonetisation period.

• Based on these findings, the Deputy Commissioner of Income Tax (Investigating Officer, Benami Prohibition Unit, Kanpur) filed a complaint. Subsequently, the Additional Sessions Judge, Lucknow, took cognisance of the alleged offence and summoned the applicant to face trial.

• The applicant challenged the summoning order under s. 482 of the CrPC on the grounds that he resided in New Delhi, outside the territorial jurisdiction of the court that passed the order. He argued that under s. 202 of the CrPC, the court was required to conduct an inquiry before taking cognisance and issuing the summons.

Issue

Whether the requirement of an inquiry under s. 202 of the CrPC was fulfilled when the summoning order was issued against the Applicant, given that he resided outside the court’s territorial jurisdiction.

Held

• The High Court held that the perusal of the complaint filed by the Union of India, the documents accompanying it, and the satisfaction recorded by the Special Court were sufficient to meet the requirements of an inquiry under s. 202 of the CrPC.

• Thus, no illegality was found in the impugned order dated 27.02.2024, taking cognisance of the offence and summoning the applicant. Consequently, the application under s. 482 of the CrPC filed by the Applicant was dismissed.

• The High Court noted that the Additional Sessions Judge, Lucknow, was designated as the Special Court under s. 50 of the Benami Act for certain districts, including Ghaziabad. Hence, the complaint was rightly filed before the designated Special Court.

• It further observed that s. 202 of the CrPC directs the Magistrate to hold an inquiry or direct an investigation to ascertain whether there is sufficient ground for proceeding against the accused. However, it does not prescribe the manner of holding such an inquiry. Thus, it was emphasised that the magistrate's inquiry at this stage is limited to determining if there is a prima facie case for summoning the accused.

Our Analysis

The decision highlights the judicial discretion granted to Magistrates under s. 202 of the CrPC and clarifies that the scope of inquiry at the summoning stage is limited. However, it is to be noted that the jurisdiction of criminal courts in the country (or even civil and other courts) is distributed on a territorial basis. In order to respect such distribution and to ensure that participants in a criminal trial, such as witnesses or even the accused, are not procedurally inconvenienced, s. 202 of the CrPC requires that in cases where a summons is being issued in a complaint case to a person outside the territorial jurisdiction of the court, an inquiry shall be compulsorily held.

Interestingly, this decision finds that though the provision requires that an inquiry shall be held, it does not provide for the specific procedure or manner of such inquiry. The decision requires to be followed carefully as a precedent because (i) the term inquiry has been well interpreted, (ii) it is procedurally settled that proceedings in a court ought to be conducted in writing, and (iii) an inquiry would certainly include application of mind by the court along with analysis of documents and evidence on record – only when this is done, can the court proceed to prima facie conclude that the complaint deserves to be proceeded with, take cognisance, and issue summonses to persons.

The automatic admission of a complaint by the court would amount to non-application of mind by the court, irrespective of the fact that a public servant has filed such a complaint. Such an approach, without going into the sufficiency of the investigation done by the complainant, cannot amount to a reasonable ‘inquiry’ done by the court and does not meet the test laid down in s. 202 of the CrPC.

The fact that the complaint was filed under the Benami Act would make no difference because such an Act does not lay down the procedure to be followed in the criminal court. Though it is well established that procedural mandates should not hinder the pursuit and ends of justice, the substance behind s. 202 of the CrPC ought to be followed.

End Note

[i] [2024] 164 taxmann.com 168 (Allahabad) [04-06-2024].

Authored by Sanyam Aggarwal, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinion