Legal Reference Library

In Arun Kumar Sharma Vs. State of U.P. , the Hon'ble Allahabad High Court has held that a Magistrate may dismiss a complaint (a) if he finds that no offence has been committed upon the statement of the complainant; (b) if he distrust the statements by the complainant, and (c) if he finds that there is no sufficient ground for proceeding. For issuing the process against the accused, it has to be only seen whether prima facie case has been made out. The Magistrate is not required to go deep into the probative value of material on record. The Magistrate before issuing process against the accused must exercise his judicial mind to the facts of the case and law applicable thereto. The Court is not required to assess the evidence and consider the probabilities or improbabilities of the version of the complaint and or evaluate the sworn statement of the complainant or witness. The Magistrate under law at this stage is not permitted to embark upon meticulous examination of the evidence or ...

The Supreme Court in Abhijit Pawar vs. Hemant Madhukar Nimbalkar, has emphasised that in cases where the accused is residing at a place beyond the area in which the magistrate exercises his jurisdiction, it is mandatory on the part of the magistrate to conduct an inquiry or investigation before issuing the process. A complaint was lodged by a policeman against editors, publishers and printers of a newspaper for publishing very offensive and contained libellous satire against him, in connection with a raid conducted by the Lokayuktha. The magistrate summoned all the accused and on the writ petitions preferred by two of the accused, the high court dropped proceedings against one of the accused and allowed the magistrate to continue proceedings against another. This order of high court was assailed by the accused and the complainant before the apex court. The bench headed by Justice AK Sikri observed that the purpose or objective behind 2005 amendment to Section 202 CrPC was to ward off f...

In Pragti Devi Vs. State of U.P. the Hon'ble Allahabad High Court, it is a fact that at the time of passing order on point of cognizance and summoning, the Magistrate is expected to consider as to whether prima facie evidence for summoning the accused are available or not. But this consideration has to be after application of judicial mind, and not blindly. Magistrate is not expected only to read the words uttered by witnesses under sections 200 or 202 CrPC, but he also is required to use its judicial mind before passing any order and not to act like a silent spectators of the words uttered by the witnesses, who were not going to be cross-examined at the stage of evidences under Chapter XV CrPC. Even in the aforesaid judgment of Km. Nisha case (supra), this court had cited certain verdicts of Hon’ble Apex Court, which are again reiterated.

Summons; Sweety Gupta Vs. Neety Gupta [Delhi High Court, 25-10-2016] Contents Summons 17. Procedure when defendant refuses to accept service, or cannot be found 18. Endorsement of time and manner of service 6. Procedure when only plaintiff appears 13. Setting aside decree ex parte against defendant Sections 101 and 103 of the Indian Evidence Act, 1872 101. Burden of proof 103. Burden of proof as to particular fact Jagat Ram Khullar and Anr. v. Battu Mal, 1976 RCJ 94 Shiv Dutt Singh v. Ram Dass, AIR 1980 All 280 Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani, (1989) 2 SCC 602 Basant Singh and Anr. v. Roman Catholic Mission, 2002 (7) SCC 531 Section 27 of the General Clauses Act, 1897 Civil Procedure Code, 1908 – Order 5 Rule 17 & 18 – Endorsement of the process server / postman – If no evidence is given with regard to service of summons, the fact that the postman or the process server reported refusal/non acceptance of the service would have to be acc...

Directing lower courts to avoid the practice of summoning accused or issuing non-bailable arrest warrants (NBWs) unnecessarily, the Madras High Court Bench here has said: “Courts are entitled to compel the appearance of the accused in criminal cases but such insistence should not be for the mere pleasure of the accused being seen in the dock.” Justice S. Vimala made the observation while setting aside a NBW issued by a Judicial Magistrate at Peraiyur near here on May 24 against Felix Suresh Peter, Inspector of Police, Nanguneri Circle in Tirunelveli district. The warrant had been issued after dismissing a petition filed by him to condone the absence due to his preoccupation with law and order problems in Nanguneri. Pointing out that the Magistrate had allowed a similar condonation petition filed on the same day for the absence of the complainant V. Radhakrishnan, who had accused the Inspector of having assaulted him besides confining him wrongfully, the judge wond...

It is the public duty of witnesses in a criminal case to give evidence whenever they receive summons from a court of law and therefore they cannot be heard to say that they shall not depose until all the accused in a case are arrested, the Madras High Court Bench here has said. Justice P.N. Prakash made the observation while closing a petition filed by a witness in a case booked by Tirupacheti police in Sivaganga district, challenging an order passed by a Sessions Court on October 4 splitting up the case into two since the police could not arrested the prime accused in the case. Not finding force in the petitioner’s plea, the judge said that the Sessions Court had split the case only because the police were unable to execute a non-bailable arrest warrant issued against the prime accused who had been hospitalised as he was suffering from a serious ailment. Report “A team of doctors too had examined A1 (the prime accused) and they have also given a report on September 15, 2015 in...

The Supreme Court in Bhushan Kumar Vs. State (NCT of Delhi) has discussed the relevant provisions of the Code of Criminal Procedure, 1973 to answer the questions posed before it; (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? While asnwering the aforesaid questions, the Supreme Court held as under; 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? 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 Magistr...

Supreme Court in Hardei vs. State of UP, has held that choice of police not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the CrPC to summon such a person on account of evidence recorded during trial. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh dismissed an appeal against High Court order refusing to set aside the order of Chief Judicial Magistrate summoning a ‘suspect’, in exercise of power under Section 319, Code of Criminal Procedure, to face trial in Sessions Trial. One of the contention on behalf of the summoned person was that he was not named as an accused in the FIR nor any charge-sheet was submitted against her after completion of investigation. Rejecting the aforesaid contention, the Bench observed that F.I.R. may not contain all the details of the occurrence or even the names of all the accused and it is not expected to be an encyclopaedia even of facts already known. The Court further held “The...