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| Accused Cannot Challenge Summoning Order After Completing Trial: HC | | | Early Times Report
JAMMU, July 11: The High Court of Jammu & Kashmir and Ladakh has held that an accused who participates in the entire trial without raising any objection cannot later challenge the summoning order after the evidence of both sides has concluded.
Justice Shahzad Azeem dismissed a petition filed by Aijaz Ahmad Bhat against the November 12, 2012 order of the Chief Judicial Magistrate, Shopian, taking cognizance of a cheque-dishonour complaint involving Rs 2.10 lakh.
The complaint under Section 138 of the Negotiable Instruments Act was filed by Nisar Ahmad Malik. The Magistrate had taken cognizance and issued process after recording the statements of the complainant and one witness.
The petitioner approached the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, contending that he resided outside the territorial jurisdiction of the Magistrate and that the court was required to conduct an inquiry under Section 202 CrPC before issuing process.
Section 202 CrPC corresponds to Section 225 of the BNSS.
The petitioner argued that the inquiry was mandatory where the accused resides beyond the territorial limits of the court. He relied upon the Supreme Court judgment in In Re: Expeditious Trial of Cases under Section 138 of the Negotiable Instruments Act, 1881.
The High Court accepted the legal position that a Magistrate is ordinarily duty-bound to conduct such an inquiry before proceeding against an accused residing outside the court's territorial jurisdiction.
The Court observed that the provision was introduced to prevent persons living at distant places from being unnecessarily harassed through false or frivolous complaints and to ensure that such cases are filtered at the threshold.
However, the Court found that the petitioner had participated in the proceedings without protest, cross-examined the witnesses and also led evidence in his defence.
The evidence of both parties had concluded and the matter was posted for final arguments on October 26, 2017. The arguments could not be heard because of the petitioner's continued absence, which also resulted in initiation of proceedings relating to forfeiture of bond.
Justice Azeem held that the petitioner had the first opportunity to raise the objection when process was issued or at the time of his first appearance before the Magistrate.
"At this highly belated stage, when the matter is awaiting its final outcome, the clock cannot be set back to the pre-cognizance state," the Court observed.
The Court said that by actively participating in the trial, the petitioner had effectively achieved the purpose for which an inquiry under Section 202 CrPC was contemplated.
His objection regarding the alleged non-compliance was, therefore, deemed to have been waived and appeared to be an afterthought, the Court said.
The High Court further observed that the petitioner had failed to show any specific prejudice or failure of justice caused by the alleged omission. After a full-fledged trial and complete opportunity to defend himself, it was extremely difficult for him to claim prejudice.
Referring to Section 465 CrPC, corresponding to Section 511 BNSS, the Court said that no order or proceeding could be reversed merely because of an error, omission or procedural irregularity unless it had actually resulted in a failure of justice.
The Court held that the alleged procedural irregularity, if any, was curable and did not justify interference under Section 528 BNSS.
Accordingly, the petition and the connected application were dismissed.
The High Court, however, clarified that the ruling was confined to the peculiar facts of the case and would not dilute the mandatory nature of an inquiry under Section 202 CrPC or Section 225 BNSS when the objection is raised at the appropriate stage.
Advocate Faisal Javied appeared for the petitioner. (JNF) |
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