Bhushan Kumar & ANR.
Vs. State (NCT of Delhi) & ANR.
[Criminal Appeal No.
612 of 2012 arising out of S.L.P. (CRL.) No. 9953 of 2010]
[Criminal Appeal No.
613 of 2012 arising out of S.L.P. (CRL.) No. 9958 of 2010]
J U D G M E N T
P.Sathasivam, J.
1.
Leave
granted.
2.
These
appeals are directed against the final judgment and order dated 30.07.2010
passed by the High Court of Delhi at New Delhi in Crl. M.C. Nos. 3376 &
3375 of 2009 whereby the High Court rejected the prayer of the appellants
herein for quashing the summoning order dated 16.01.2009 passed by the
Metropolitan Magistrate in FIR No. 290 of 2002 registered at Police Station,
Okhla Industrial Area, New Delhi under Section 420 of the Indian Penal Code,
1860 (hereinafter referred to as the IPC.
3.
Brief
facts:
a. The present cases pertain
to a property dispute regarding distribution of the assets left behind by late
Shri Gulshan Kumar (of T- Series fame). On 19.02.1998, a handwritten note was executed
between the appellants and Respondent No. 2 wherein distribution of certain assets
and shares in different companies was provided for. Subsequently, on 21.02.1998,
a fresh agreement was entered into between the appellants and the Respondent
No. 2 which superseded the handwritten note.
b. However, disputes
arose soon after the above said second agreement dated 21.02.1998, giving rise
to multifarious litigations at the behest of Respondent No. 2 which are
presently pending adjudication before the High Court.
c. However, after 4
years, due to non-materialization of the agreement dated 21.02.1998, the
Respondent No. 2 got registered the present FIR under Section 420 IPC against
all the other signatories to the said agreement wherein only one of the
signatory was a party to it. For quashing the said FIR, the appellants herein
filed Crl.M.C. No. 59 of 2005 before the High Court.
d. On being informed by
the State that chargesheet has been filed before the Magistrate, the High Court
disposed of the Crl.M.C. No. 59 of 2005 vide order dated 30.03.2009 giving
liberty to the appellants to take appropriate steps in case they are summoned.
e. By order dated
16.01.2009, the Magistrate summoned the appellants herein. Challenging the said
summoning order, the appellants herein filed Criminal M.C. Nos. 3376 and 3375
of 2009 before the High Court.
f. By the impugned order
dated 30.07.2010, the High Court rejected the prayer of the appellants for
quashing the summoning order passed by the Magistrate. Aggrieved by the said
order, the appellants have filed these appeals by way of special leave before
this Court. 4) Heard Mr. Ranjit Kumar, learned senior counsel for the
appellants and Mr. Vijay Aggarwal, learned counsel for respondent No.2.
1.
2.
3.
4.
5.
The
questions which arise for consideration in these appeals are:
a. Whether taking cognizance
of an offence by the Magistrate is same as summoning an accused to appear?
b. Whether the Magistrate,
while considering the question of summoning an accused, is required to assign reasons
for the same?
1.
2.
3.
4.
5.
6.
In
this context, it is relevant to extract Sections 190 and 204 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the Code) which read as
under: 190. Cognizance of offences by Magistrates.
I.
Subject
to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate
of the second class specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-
a. upon receiving a
complaint of facts which constitute such offence ;
b. upon a police report
of such facts;
c. upon information received
from any person other than a police officer, or upon his own knowledge, that
such offence has been committed.
1.
2.
The
Chief Judicial Magistrate may empower any Magistrate of the second class to
take cognizance under sub-section (1) of such offences as are within his
competence to inquire into or try. 204. Issue of process.
1. If in the opinion of
a Magistrate taking cognizance of an offence there is sufficient ground for proceeding,
and the case appears to be-
a. a summons-case, he
shall issue his summons for the attendance of the accused, or
b. a warrant-case, he
may issue a warrant, or, if he thinks fit, a summons, for causing the accused
to be brought or to appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having jurisdiction.
1.
2. No summons or warrant
shall be issued against the accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
3. In a proceeding
instituted upon a complaint made in writing, every summons or warrant issued
under sub-section (1) shall be accompanied by a copy of such complaint.
4. When by any law for
the time being in force any process-fees or other fees are payable, no process
shall be issued until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
5. Nothing in this
section shall be deemed to affect the provisions of section 87.
1.
2.
3.
4.
5.
6.
7.
In
S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. &
Ors., (2008) 2 SCC 492, the expression cognizance was explained by this Court
as it merely means become aware of and when used with reference to a court or a
Judge, it connotes to take notice of judicially. It indicates the point when a court
or a Magistrate takes judicial notice of an offence with a view to initiating proceedings
in respect of such offence said to have been committed by someone. It is entirely
a different thing from initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance
is taken of cases and not of persons.
8.
Under
Section 190 of the Code, it is the application of judicial mind to the
averments in the complaint that constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there is sufficient ground for
proceeding and not whether there is sufficient ground for conviction. Whether
the evidence is adequate for supporting the conviction can be determined only
at the trial and not at the stage of enquiry. If there is sufficient ground for
proceeding then the Magistrate is empowered for issuance of process under
Section 204 of the Code.
9.
A
summon is a process issued by a Court calling upon a person to appear before a
Magistrate. It is used for the purpose of notifying an individual of his legal
obligation to appear before the Magistrate as a response to violation of law. In
other words, the summons will announce to the person to whom it is directed
that a legal proceeding has been started against that person and the date and
time on which the person must appear in Court. A person who is summoned is
legally bound to appear before the Court on the given date and time. Willful disobedience
is liable to be punished under Section 174 IPC. It is a ground for contempt of
court.
10.
Section
204 of the Code does not mandate the Magistrate to explicitly state the reasons
for issuance of summons. It clearly states that if in the opinion of a
Magistrate taking cognizance of an offence, there is sufficient ground for
proceeding, then the summons may be issued. This section mandates the
Magistrate to form an opinion as to whether there exists a sufficient ground
for summons to be issued but it is nowhere mentioned in the section that the explicit
narration of the same is mandatory, meaning thereby that it is not a
pre-requisite for deciding the validity of the summons issued.
11.
Time
and again it has been stated by this Court that the summoning order under
Section 204 of the Code requires no explicit reasons to be stated because it is
imperative that the Magistrate must have taken notice of the accusations and
applied his mind to the allegations made in the police report and the materials
filed therewith.
12.
In
Kanti Bhadra Shah & Anr. vs. State of West Bengal (2000) 1 SCC 722, the
following passage will be apposite in this context: 12. If there is no legal
requirement that the trial court should write an order showing the reasons for
framing a charge, why should the already burdened trial courts be further burdened
with such an extra work. The time has reached to adopt all possible measures to
expedite the court procedures and to chalk out measures to avert all roadblocks
causing avoidable delays. If a Magistrate is to write detailed orders at
different stages merely because the counsel would address arguments at all stages,
the snail-paced progress of proceedings in trial courts would further be slowed
down. We are coming across interlocutory orders of Magistrates and Sessions Judges
running into several pages. We can appreciate if such a detailed order has been
passed for culminating the proceedings before them. But it is quite unnecessary
to write detailed orders at other stages, such as issuing process, remanding
the accused to custody, framing of charges, passing over to next stages in the trial&
& & (emphasis supplied)
13.
In
Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736,
this Court held that it is not the province of the Magistrate to enter into a
detailed discussion on the merits or demerits of the case. It was further held
that in deciding whether a process should be issued, the Magistrate can take
into consideration improbabilities appearing on the face of the complaint or in
the evidence led by the complainant in support of the allegations.
The Magistrate has
been given an undoubted discretion in the matter and the discretion has to be
judicially exercised by him. It was further held that once the Magistrate has
exercised his discretion, it is not for the High Court, or even this Court, to substitute
its own discretion for that of the Magistrate or to examine the case on merits with
a view to find out whether or not the allegations in the complaint, if proved,
would ultimately end in conviction of the accused.
14.
In
Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal & Ors.
(2003) 4 SCC 139, this Court, in para 9, held as under: 9. In determining the
question whether any process is to be issued or not, what the Magistrate has to
be satisfied is whether there is sufficient ground for proceeding and not
whether there is sufficient ground for conviction. Whether the evidence is
adequate for supporting the conviction, can be determined only at the trial and
not at the stage of inquiry.
At the stage of
issuing the process to the accused, the Magistrate is not required to record
reasons. This question was considered recently in U.P. Pollution Control Board
v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti
Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p.
749, para 6) The legislature has stressed the need to record reasons in certain
situations such as dismissal of a complaint without issuing process. There is
no such legal requirement imposed on a Magistrate for passing detailed order
while issuing summons. The process issued to accused cannot be quashed merely
on the ground that the Magistrate had not passed a speaking order.
15.
In
U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2
SCC 147, this Court, in paragraph 23, held as under: 23. It is a settled legal
position that at the stage of issuing process, the Magistrate is mainly
concerned with the allegations made in the complaint or the evidence led in
support of the same and he is only to be prima facie satisfied whether there
are sufficient grounds for proceeding against the accused.
16.
This
being the settled legal position, the order passed by the Magistrate could not
be faulted with only on the ground that the summoning order was not a reasoned
order.
17.
It
is inherent in Section 251 of the Code that when an accused appears before the
trial Court pursuant to summons issued under Section 204 of the Code in a
summons trial case, it is the bounden duty of the trial Court to carefully go
through the allegations made in the charge sheet or complaint and consider the
evidence to come to a conclusion whether or not, commission of any offence is disclosed
and if the answer is in the affirmative, the Magistrate shall explain the
substance of the accusation to the accused and ask him whether he pleads guilty
otherwise, he is bound to discharge the accused as per Section 239 of the Code.
18.
The
conclusion of the High Court that the petition filed under Section 482 of the
Code is not maintainable cannot be accepted in view of various decisions of
this Court. (vide Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate
& Ors. (1998) 5 SCC 749, Dhariwal Tobacco Products Ltd. & Ors. vs.
State of Maharashtra & Anr. (2009) 2 SCC 370 and M.A.A. Annamalai vs. State
of Karnataka & Anr. (2010) 8 SCC 524).
19.
In
the light of the above discussion, we conclude that the petition filed before
the High Court under Section 482 of the Code was maintainable. However, on
merits, the impugned order dated 30.07.2010 passed by the High Court of Delhi is
confirmed, consequently, the appeals fail and the same are dismissed. In view
of the dismissal of the appeals, MM/South East 02, Patiala House, New Delhi is
free to proceed further in accordance with law, uninfluenced by any observation
made in these appeals.
……………………………J
(P. SATHASIVAM)
…………………………...J
(J. CHELAMESWAR)
NEW
DELHI;
APRIL
4, 2012.
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