Delhi High Court

M/S. C.E. Contructions Ltd. vs State And Anr on 5 August, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Decided on: August 05, 2011

+      CRL.M.C. No.2109/2008 & CRL.M.A. No.7850/2008

       M/S. C.E. CONSTRUCTIONS LTD.               ....PETITONER
                 Through: Mr. Vijay Aggarwal, Advocate

                              Versus

       STATE & ANR                                       .....RESPONDENT

Through: Ms. Fizani Husain, APP for R-1.

Mr. Asutosh Lohia, Advocate for R-2.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. Petitioner is aggrieved of the summoning order dated

09.05.2003 issued by the learned Metropolitan Magistrate on the

complaint preferred by the NDMC under Section 252/369(1) of the

NDMC Act, 1994. The NDMC in its complaint titled New Delhi

Municipal Council Vs. Anil Gawa, Manager. C.E. Construction Ltd and

Others had alleged that the petitioner company and others are

guilty of violation of provisions of NDMC Act inasmuch as they had

changed the user of Flat No.6A Girdhar Apartment, 28 Firoz Shah

Road, New Delhi from residential to commercial purpose with the

consent, knowledge and abetment of the co-accused Gyan Prakash

Ahluwalia.

2. The NDMC alleged that the petitioner company on the date of

inspection i.e. 24.02.2003 was in occupation of the said flat.

Statutory notice under Section 252 NDMC Act was served upon the

petitioner and the co-accused persons calling upon them to stop the

misuse of premises. The notice was duly served on 07.03.2003 and

it was also served by CRD post on 17.03.2003. The petitioner as

well as co-accused persons neither replied to the notice nor they

stopped the misuse. This led to filing of the complaint.

3. Learned Metropolitan Magistrate vide the impugned order

dated 09.05.2003 took cognizance and summoned the petitioner

and his co-accused persons for seeking trial for the offence

punishable under Section 252/369(1) of the NDMC Act, 1994.

4. Main ground urged for setting aside of the impugned

summoning order is that the order is a stereo type one issued on a

pre-prepared performa by filing in the blanks. Learned counsel

contended that this clearly discloses utter non-application of mind to

the allegations in the complaint by the court. In support of this

contention, petitioner has relied upon the judgment in the matter of

Ravinder Goel and Anr. Vs State and Anr., 2007 (1) JCC 465 as

also Charanjeet Vs. DDA and Anr, 94(2001) DLT 334.

5. In Pepsi Foods Ltd and nother. Vs. Special Judicial

Magistrate and Others, 1998 SCC(Crl) 1400, the Supreme Court

observed thus:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the 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 a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise 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."

6. From the above enunciation of law, it is obvious that the

Magistrate before summoning the accused is under obligation to

carefully scrutinize the complaint and other material to come to the

conclusion whether or not, any offence is prima facie committed by

the accused.

7. Karnataka High Court in the matter of

D.A. Mehta & 2 Ors. Vs. The Regional Director, E.S.I. Corpn.,

Criminal Petition Nos. 1562 and 1563 of 1988, while dealing with the

legality of summoning order issued on a printed performa, set aside

the summoning order with following observation:

"This order is passed in a printed proforma wherein only the date of the order is mentioned in column 2 and the date for the return of the summons is mentioned and the learned Presiding Officer has put his initials. Section 204 Cr.P.C. lays down the procedure to be followed for the issue of process. It lays down that the Magistrate shall issue summons or the warrant as the case may be only if in his opinion there is sufficient ground for proceeding. The Magistrate is required to form an opinion that there is sufficient ground for proceeding in the case and for forming that opinion, the Magistrate will be required to apply his mind to the material placed before him and if an order is passed in a printed proforma simply by filling up the gaps for the dates there, it only shows that the Magistrate has not studied the material placed before him and not applied his mind and not formed any opinion about proceeding further in the matter. Such an order which is passed in a mechanical manner without application of the mind and in a printed proforma does not satisfy the requirements of Section 204 Cr.P.C. and such an order deserves to be set aside. The very fact that printed proforma is used in these cases goes to show that the learned Presiding Officer has passed the orders without taking the trouble of looking into the records and forming an opinion as to whether there is sufficient ground for proceeding. If such orders are challenged, this Hon'ble Court will be justified in quashing such untenable orders. Therefore, it is necessary that the Magistrates who are required to take cognizance of the offence and issue process follow the law as laid down in Section 204 Cr.P.C, and apply their mind and form an opinion that there is sufficient ground for proceeding in the matter before passing the matter".

8. The principle laid down in D.A. Mehta's case (supra) was

followed by this Court in Ravinder Goel (supra) wherein learned

Single Judge of this Court, inter alia, observed thus:

"5. One of the singular characteristics of a judicial order is that it would disclose application of mind, in the given facts at hand. The respondents have not denied the stereotyped format used by the trial Court with particulars filled at appropriate places, in hand, and signed by the Magistrate. Such an "order" could have passed muster if it was a show cause notice in administrative proceedings. It cannot, however stand scrutiny where as in the present case, the consequences are penal in nature."

9. In the instant case, undisputedly the summoning order has

been passed on a pre-prepared performa with blanks which has

been filled in by hand. It is difficult to ascertain whether those

blanks have been filled in the handwriting of Presiding Magistrate or

some of its staff members. Summoning order does not refer to

material allegations in the complaint constituting offence.

Therefore, it is obvious that the summoning order has been passed

in routine manner on its stereotype format used by the learned M.M.

without due application of mind to the averments made in the

complaint. Such "order" could have passed muster if it was a show

cause notice in an administrative proceeding. It, however, cannot

stand scrutiny of law where the consequences of summoning orders