The Delhi High Court recently comprising of a bench of Justice Chandra Dhari Singh observed that summoning an accused in a criminal case is a serious matter and criminal law cannot be set in motion in a mechanical and routine manner. (Yogesh Jagia v Jindl Biochem Pvt Ltd.)
Facts of the case
The court was hearing a petition filed under Section 482 CrPC to quash the summons issued by the Magistrate.
The complainant had filed police complaint against the petitioner on 5th January, 2011 alleging that despite receiving entire agreed sale consideration, accused no. 2 and 3, being directors, failed to execute sale deed and the petitioner in connivance released documents out of their escrow account, thereby committed criminal breach of trust under sec. 409 of the Indian Penal Code, 1860.
An Application was also filed under sec. 156(3) of the Cr.P.C. by the complainant, and vide order dated 30th June, 2011, the same was dismissed. However, cognizance was taken upon the complaint and complainant was asked to lead pre-summoning evidence.
Contention of the Parties
Senior advocate Ramesh Gupta, appearing for the petitioner, submitted that the complainant has failed to make out a prima facie case of commission of any offence under Section 409 of the IPC.
The counsel for the complainant submitted that pre-summoning evidence as well as the other material on record were well appreciated by the trial court and all of the material supported the case of the complainant.
Courts Observation and Judgment
The court at the very outset observed, “The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that prosecution need to prove the actual mode of misappropriation and once entrustment of all dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with. In the instant case, the Court below while issuing summons against the petitioner has overlooked the facts that no material on the record to establish any misappropriation of the money of the escrow account and therefore, the Court below has passed the impugned order without application of mind.”
The bench further noted, “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The complainant has to bring on record material to support his allegations in the complaint to have criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused.”
The bench remarked that criminal proceedings are not a shortcut for other remedies. The petitioner is a practicing advocate and he has given his professional services to the parties and there is no material on record to establish prima facie that he has committed any offence as alleged in the complaint.
The bench disposing of the petition observed, "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The complainant has to bring on record material to support his allegations in the complaint to have criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is the silent spectator at the time of recording of preliminary evidences before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
It is settled law that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial."
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