Magistrate Must Examine If Complaint Constitutes Only A Civil Wrong Before Summoning Accused : Supreme Court

The Supreme Court observed that a summoning order under Section 204 CrPC should not be passed lightly or as a matter of course.

"When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities", the bench of Justices Sanjiv Khanna and J K Maheshwari observed.

In this case, the complainant had invoked Sections 405, 420, 471, and 120B of the IPC against the accused. However, the Magistrate directed summons to be issued only under Section 406 of the IPC, and not under Sections 420, 471 or 120B of the IPC. This summoning order was challenged before the Allahabad High Court unsuccessfullly.

In appeal, the Apex Court bench, perusing the the averments made in the complaint and the pre-summoning evidence led by complainant, noted that they fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420, and 471 of the IPC, as the allegations pertain to alleged breach of contractual obligations.

In this context, while quashing the Summoning order, the bench said: 

The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion.

The court added that the requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record.

"He/she may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times."

Case details

Deepak Gaba vs State of Uttar Pradesh | 2023 LiveLaw (SC) 3 | CrA 2328 OF 2022 | 2 January 2023 | Justices Sanjiv Khanna and J K Maheshwari

For Appellant(s) Mr. Vividh Tandon, Adv. Mr. Syed Jafar Alam, AOR; For Respondent(s) Mr. Sarvesh Singh Baghel, AOR Mr. Harsh Pratap Shahi, Adv. Ms. Mayuri Raghuvanshi, AOR Mr. Vyom Raghuvanshi, Adv.

Headnotes

Code of Criminal Procedure, 1973 ; Section 204 - Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times. (Para 21)

Indian Penal Code, 1860 ; Section 405 , 406 - A mere dispute on monetary demand does not attract the offence of criminal breach of trust - Mere wrong demand or claim would not meet the conditions specified by Section 405 of the IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. (Para 15)

Code of Criminal Procedure, 1973 ; Section 202,204 - While summoning an accused who resides outside the jurisdiction of court, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. (Para 22)

Indian Penal Code, 1860 ; Section 415, 420 - The sine qua non of Section 415 of the IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating - For the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security. (Para 17)

Indian Penal Code, 1860 ; Section 464, 470 471- The condition precedent of an offence under Section 471 of the IPC is forgery by making a false document or false electronic record or part thereof - A person is said to have made a ‘false document’: (i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses. Unless, the document is false and forged in terms of Sections 464 and 470 of the IPC respectively, the requirement of Section 471 of the IPC would not be met. (Para 18)

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