Summoning Accused In A Criminal Matter Is A Serious Business, Should Not Be Done Mechanically: J&K&L High Court

Justice Sanjay Dhar said:

"Summoning of an accused in a criminal matter is a serious business. Once the criminal law is set into motion, the accused is exposed to the possibility of arrest and he has to rush to the court to seek bail. Therefore, the order of summoning an accused in a criminal complaint should not be a mechanical exercise but such an order should reflect that the Magistrate has applied his mind to the facts of the case and the applicable law, whereafter the Magistrate has to record his satisfaction as to whether any offence is made out and if so, which of the offences is made out from the contents of the complaint and the material available before him. It is only thereafter that the Magistrate has to decide as to whether or not the process has to be issued against an accused."

The observation was made in plea moved by telecom giant Airtel, challenging an order of Additional Sessions Judge, Pulwama, which had set aside Magistrate's order dismissing a complaint lodged against the company for offences under Sections 406, 418, 420, 109 and 120-B RPC stating that there is no sufficient ground for proceeding against the company.

The complaint was lodged over non-activation of a Sim card purchased by the respondent/ complainant from the company.

The Sessions Judge had remanded the case back to the trial Magistrate with a direction to proceed afresh and pass order in accordance with the provisions of law.

Airtel has argued that its transactions with the respondent are purely of civil nature and if at all the respondent has any grievance, he can approach a Civil Court or a Consumer Redressal Forum. It was further contended that the allegations made in the complaint do not disclose commission of any offence.

The respondent after appearing on a few dates stopped appearing in the case and, as such, the case was heard in his absence.

The Court observed that in order to attract the ingredients of Section 420, there has to be an element of cheating on the part of the accused. There must be a fraudulent or dishonest inducement on the part of a person at the time of commission of the offence and thereby the other party must have parted with his property.

"There can be no dispute to the legal proposition that pursuing of civil remedy will not bar criminal proceedings and that the criminal proceedings cannot be quashed merely because civil remedy is also available to a complainant but then when a dispute arising in a case is purely of a civil nature and it has been given a criminal colour just to wreak vengeance upon the accused and to coerce him to settle a purely civil dispute, the court has to scuttle any such attempt on the part of the complainant."

After perusing the records and evidences on record, the court was of opinion that, it is clear that that the dispute between the petitioners and the respondent/complainant is purely of civil nature and even otherwise, the allegations made in the impugned complaint against the petitioners do not constitute any criminal offence.

Thus, the Court noted that this is a fit case where it should exercise its powers under Section 482 CrPC to prevent the abuse of process of law and quash the order passed by Additional Sessions Judge.

The Petition was thus allowed.

CASE TITLE: BHARTI AIRTEL LIMITED COMPANY & ORS v MALIK MUSHTAQ