Prima Facie Appreciation Of Evidence & Application Of Judicial Mind Must For Summoning Order To Be Just And Legal: Delhi High Court

The Delhi High Court has observed that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal.

Justice Chandra Dhari Singh was dealing with a petition filed under Section 482 of CrPC against the impugned order dated 17th March, 2018 passed in a Revision Petition arising out of Summoning Order dated 20th June, 2015 passed in a case registered under Section 380 of IPC.

The marriage between the Petitioner and the son of the Respondent No. 2 was solemnized on 30th January, 1990 and the relationship between the couple was cordial in the beginning, however, it started to deteriorate with time.

It was the petitioner's case that her husband used to continuously torture, harass and humiliate her for dowry and other issues since the very beginning of marriage and was maltreated by him and his family members.

She alleged that her husband was having an illicit relationship with his office receptionist, which was supported by his family members, but objected to by the Petitioner. It was alleged that she was subjected to continuous torture, cruelty and inhumane treatment and was thrown out from her matrimonial house on 16th September, 2011.

The Metropolitan Magistrate held that the Petitioner was entitled to the right of residence in the first floor of the property in question, thereby directing that the Petitioner be restrained from interfering in the affairs of the Respondents at the ground floor and similarly, the said Respondents were also restrained from interfering in the physical possession or enjoyment at the first floor of the property of the Petitioner.

The Respondent No. 2 filed a Revision Petition against the said Order which was dismissed by the Sessions Court vide Order dated 5th December, 2013.

Thereafter on 4th July, 2015, the Petitioner came to know that a notice of summons issued by Additional Chief Metropolitan Magistrate against her vide Order dated 20th June, 2015, in a complaint case filed by Respondent No. 2 for allegedly removing certain letters from the deemed possession of the Respondent No. 2, while he was not present at his house at the aforementioned address.

The petitioner had then preferred a Revision Petition against the Order dated 20th June, 2015 which was also dismissed by the Sessions Court on 17th March, 2018.

The writ petition was thereafter filed challenging the order dated 17th March, 2018 by way of which the Sessions Judge observed that a prima facie ground had been made out to allege that the Petitioner committed theft of the letters in possession of the Respondent No. 2 as well as another order wherein summons were issued to the Petitioner under Section 380 of the IPC.

Hearing the parties, the Court was of the view that it is a settled position of law that while issuing summons to the accused the concerned Court has to be prima facie satisfied of the charges alleged against the accused.

"It can therefore, be reasonably inferred that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal," the Court observed.

The Court was of the view a bare perusal of the provision for the offence of theft suggests that the person committing the offence shall firstly, remove any movable property from the possession of a person, secondly, do so without his consent and thirdly, remove such property with dishonest intention.

The Court said that the keywords used in sec. 380 of IPC provision are "intending to take dishonestly", which provides that there must be an intention which is dishonest to remove the property from the possession of a person.

It therefore said that the intention must be to cause wrongful gain to one and wrongful loss to another, and in terms of theft, while removing the movable property out of the possession of a person, the person committing theft must have such kind of intention.

On the facts of the case, the Court noted the fact that the Petitioner had been living in the premises in question since the day she got married into the family which was her matrimonial home.

The Court was of the view that there was a high probability that any letters coming into the home could have been addressed to her.

"Since, the post box is located at the entrance of the house and not usually on each floor, there is a likelihood of the Petitioner‟s letters and mail being delivered in the very post box that was located on the ground floor of the house. Moreover, the post also seldom contains generic material such as newspapers, magazines, testimonials, etc. that are common to the household. Therefore, even if the Petitioner picked up the letters lying on the floor of the part of the house in possession of the Respondent No. 2, the dishonest intention, of causing wrongful gain to herself or any other person and wrongful loss to the Respondent No. 2 or anyone else, was not established at the preliminary stage. There is barely any wrongful loss or gain that could not have been caused merely by picking up certain letters lying on the floor of the house," the Court said.

Observing that the ingredient of dishonest intention was not found in the actions of the Petitioner, the Court concluded that prima facie offence could not under Section 380 of the IPC was not made out against the petitioner. Therefore the Court said that the impugned order dated 20th June, 2015 and summons issued to the Petitioner were improper and erroneous.

"The Revisional Court ought to have appreciated that the Court below did not consider that prima facie an offence of theft was not made out against the Petitioner as the very ingredients of the offence under Section 380 of the IPC were not met. There was an apparent error of law while passing the Order of summons and the Revisional Court wrongly upheld the Order dated 20th June, 2015 vide its Order dated 17th March, 2018," the Court held.

The petition was accordingly disposed of.

Title: ANJANI GUPTA v. THE STATE (NCT OF DELHI) & ANR

Citation: 2022 LiveLaw (Del) 199

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