Thursday, 7 January 2016

Whether court can take in to consideration defence of accused prior to order of issue process?

In the present case, on going through the order of the
learned Magistrate, we are satisfied that the same suffers from
no illegality. The specific case of the appellant that FIR was
registered on an undated photocopy of a petition attributed to
the appellant but not bearing her original signature could not
have been rejected by the learned Magistrate at the present
stage especially in view of the report of investigation by the CID
which was also called for and there being no dispute that the FIR
No.73/2002 was registered only on the basis of a photocopy on
which the signature is not in original and hence in our considered
view the Hon’ble High Court grossly erred in exercise of its
jurisdiction by directing the appellant/complainant to lead further
evidence and produce the original documents to show forgery. If
the FIR is admittedly on the basis of only a photocopy of a
document allegedly brought into existence by the accused
persons, the High Court erred in directing the appellant to
produce the original and get the signatures compared.
 In our considered view, the High Court fell into error of
evaluating the merits of the defence case and other submissions
advanced on behalf of the accused which were not appropriate

for consideration at the stage of taking cognizance and issuing
summons.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 285-287 OF 2015
[Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]
Sonu Gupta …..Appellant
Versus
Deepak Gupta & Ors.
…..Respondents
February 11, 2015.
Citation;2015ALLMR(Cri)1192(SC),2015(2)Crimes1(SC),(2015)3SCC424,


2. The parties have been heard in detail and they have also
filed written submissions. Appellant is wife of respondent no.1
and is complainant in Criminal Complaint No.1213/2011 before
Court of Judicial Magistrate, First Class, Raipur. The respondents
are accused in this Complaint Case which was filed on 07.12.2010
for alleged offences under Section 464, 468 and 471 of the Indian
Penal Code (IPC).
3. The appellant and respondent no.1 are undergoing a
protracted matrimonial dispute. It is the case of appellant as well

as respondent no.1 that they were married in February 1997. A
girl child was born to the appellant in May 1998 and in 2001 the
appellant gave informations on various dates to several police
authorities regarding alleged torture and harassment inflicted on
her by respondent nos.1 to 8 for dowry as well as for giving birth
to a girl child. It is appellant’s case that in April 2001 itself there
was pressure by the common relatives and friends leading to
appellant withdrawing her allegations against respondent no.1
who in turn withdrew Divorce Petition No.496/2000 and the same
was dismissed as withdrawn by order of Additional District Judge,
Delhi dated 30th April 2001. The differences between the spouses
got settled amicably in April-May 2001. The appellant gave birth
to another girl child in August 2002 much to the dislike of
accused persons.
4. The substance of the accusation in the instant complaint
case is that anticipating legal action by the appellant against
renewed mental torture and harassment by the respondent no.1
and his other relations named as accused, as a stratagem and
outcome of a conspiracy, one of her earlier letters of complaint to
some police officials which had been withdrawn by the appellant
in April-May 2001, was changed and tampered as per
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Crl.A.@S.L.P.(Crl.)Nos.300-302/13
convenience and a photocopy of such undated complaint making
out a weak case against the respondents which was bound to fail,
was got registered at the instance of the accused persons
themselves with the help of some police officials as Criminal Case
(FIR No.73/2002) on 06.10.2002 in the Mahila Thana, Raipur by
the Town Inspector of this Thana under pressure of accused no.9,
Additional Director General of Police, PHQ, Raipur. According to
the complaint petition, the appellant informed the concerned
court that the FIR No.73/2002 was neither filed by her nor signed
by her and this FIR facilitated her husband and his relations who
were accused to obtain anticipatory bail not only in FIR
No.73/2002 but also in the case genuinely filed by the appellant
against accused nos.1 to 8 under Sections 498A and 406, IPC in
Women’s Cell, Kirti Nagar, Delhi registered as Complaint
No.372/2004 on 15.06.2004. The appellant was also surprised to
receive in July 2003 a notice of Divorce Petition filed by
respondent no.1 in a Delhi court on 19.5.2003. The appellant
approached various authorities and tried to get an investigation
into her allegations that FIR No.73/2002 was fraudulently
registered to benefit the accused nos.1 to 8 and the appellant
had no role in registering the same. Ultimately, even after a CID
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Crl.A.@S.L.P.(Crl.)Nos.300-302/13
investigation in favour of appellant’s case, when no action was
taken against the culprits and no copy of the CID report was
made available to the appellant, she filed a Writ Petition
No.1488/2005 before the High Court of Chhattisgarh at Bilaspur
seeking the record of investigation report of CID and registration
of a criminal case against the accused as well as investigation by
CBI. In terms of directions of the High Court issued while
disposing of the writ petition on 24.06.2010, the appellant was
provided with copy of the CID investigation report and was also
permitted to inspect the entire connected record. Thereafter
appellant could find that the Station House Officer of Mahila
Thana, Raipur as well as accused no.9, Additional Director
General of Police, PHQ, Raipur also had played a role in
fraudulent registration of FIR No.73/2002 and hence she filed the
instant criminal complaint before the Court of Judicial Magistrate,
First Class, Raipur on 07.12.2010.
5. The learned Judicial Magistrate recorded the statement of
the appellant and also called for record of CID investigation in the
matter of FIR No.73/2002 for the purpose of perusal and
evaluation. On receipt of the record, the learned Judicial
Magistrate passed a speaking order on 02.05.2011 whereby he
4Page 5
Crl.A.@S.L.P.(Crl.)Nos.300-302/13
issued summons against accused nos.1 to 9 after finding a prima
facie case on the basis of complaint petition, statement of
complainant (appellant) as well as records of CID investigation on
which the complainant had placed reliance. Accused nos.1 to 8
preferred one set of criminal revision and accused no.9 preferred
another criminal revision before the Sessions Court at Raipur. By
two separate orders passed on same date, i.e., 30.11.2011, the
Sessions Court upheld the summoning order in respect of
accused nos.1 to 5 but set it aside in respect of accused nos.6 to
8 and accused no.9. Against these two orders the appellant
preferred criminal revision petitions whereas accused nos.1 to 5
also preferred a Criminal Miscellaneous Petition bearing
No.45/2012 before the High Court. The High Court, by common
judgment and order dated 07.09.2012 which is under appeal,
dismissed both the criminal revision petitions preferred by the
appellant against grant of relief to accused nos.6 to 9 and
allowed criminal miscellaneous petition of accused nos.1 to 5 by
setting aside the summoning order of the Magistrate and
directing the appellant to appear before the Court of Judicial
Magistrate for adducing further evidence, if any, to support her
allegation in the complaint petition. The High Court thus remitted
5Page 6
Crl.A.@S.L.P.(Crl.)Nos.300-302/13
back the matter with various observations requiring the appellant
to produce alleged documents which could prove forgery and also
to send the same to expert for examination of the document and
signature of the complainant/appellant.
6. Considering the stage at which the criminal complaint is
pending and the nature of proposed order, this Court would not
like to express any definite opinion on the merits of the
allegations made in the complaint petition or upon the defence
taken by the accused persons before the courts below or in this
Court lest it prejudices one or the other party in future.
7. Having considered the details of allegations made in the
complaint petition, the statement of the complainant on solemn
affirmation as well as materials on which the appellant placed
reliance which were called for by the learned Magistrate, the
learned Magistrate, in our considered opinion, committed no error
in summoning the accused persons. At the stage of cognizance
and summoning the Magistrate is required to apply his judicial
mind only with a view to take cognizance of the offence, or, in
other words, to find out whether prima facie case has been made
out for summoning the accused persons. At this stage, the
learned Magistrate is not required to consider the defence
6Page 7
Crl.A.@S.L.P.(Crl.)Nos.300-302/13
version or materials or arguments nor he is required to evaluate
the merits of the materials or evidence of the complainant,
because the Magistrate must not undertake the exercise to find
out at this stage whether the materials will lead to conviction or
not.
8. It is also well settled that cognizance is taken of the offence
and not the offender. Hence at the stage of framing of charge an
individual accused may seek discharge if he or she can show that
the materials are absolutely insufficient for framing of charge
against that particular accused. But such exercise is required
only at a later stage, as indicated above and not at the stage of
taking cognizance and summoning the accused on the basis of
prima facie case. Even at the stage of framing of charge, the
sufficiency of materials for the purpose of conviction is not the
requirement and a prayer for discharge can be allowed only if the
court finds that the materials are wholly insufficient for the
purpose of trial. It is also a settled proposition of law that even
when there are materials raising strong suspicion against an
accused, the court will be justified in rejecting a prayer for
discharge and in granting an opportunity to the prosecution to
bring on record the entire evidence in accordance with law so
7Page 8
Crl.A.@S.L.P.(Crl.)Nos.300-302/13
that case of both the sides may be considered appropriately on
conclusion of trial.
9. Learned senior advocate for the appellant Mr. Aman Lekhi
has relied upon a catena of judgments such as :-
(i) Bhim Lal Shah vs. Bisa Singh & Ors. [17 CWN 290];
(ii) State of Orissa & Anr. vs. Saroj Kumar Sahoo [(2005)
13 SCC 540];
(iii) Riyasat Ali vs. State of U.P. [1992 Crl.L.J. 1217];
(iv) Nupur Talwar vs. Central Bureau of Investigation &
Anr. [(2012) 11 SCC 465];
(v) Amit Kapoor vs. Ramesh Chander & Anr. [(2012) 9 SCC
460];
(vi) Asmathunnisa vs. State of Andhra Pradesh & Anr.
[(2011) 11 SCC 259];
(vii) MEDCHL Chemicals & Pharma (P) Ltd. vs. Biological E.
Ltd. & Ors. [(2000) 3 SCC 269];
(viii) State of Uttar Pradesh vs. Paras Nath Singh [(2009) 6
SCC 372];
(ix) B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC 177];
(x) Matajog Dobey vs. H.C. Bhari [AIR 1956 SC 44];
(xi) P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC 704].
These need no discussion because settled propositions of law
reiterated therein have already been noticed earlier.

10. In the present case, on going through the order of the
learned Magistrate, we are satisfied that the same suffers from
no illegality. The specific case of the appellant that FIR was
registered on an undated photocopy of a petition attributed to
the appellant but not bearing her original signature could not
have been rejected by the learned Magistrate at the present
stage especially in view of the report of investigation by the CID
which was also called for and there being no dispute that the FIR
No.73/2002 was registered only on the basis of a photocopy on
which the signature is not in original and hence in our considered
view the Hon’ble High Court grossly erred in exercise of its
jurisdiction by directing the appellant/complainant to lead further
evidence and produce the original documents to show forgery. If
the FIR is admittedly on the basis of only a photocopy of a
document allegedly brought into existence by the accused
persons, the High Court erred in directing the appellant to
produce the original and get the signatures compared.
11. In our considered view, the High Court fell into error of
evaluating the merits of the defence case and other submissions
advanced on behalf of the accused which were not appropriate

for consideration at the stage of taking cognizance and issuing
summons.
12. Learned advocate for the accused persons, Mr. D.N.
Goburdhan has placed reliance upon judgment in the case of
Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate &
Ors. (1998) 5 SCC 749 to highlight that summoning of an
accused is a serious matter and, therefore, the order of the
Magistrate must reflect that he has applied his mind to the facts
of the case and the relevant law, as highlighted in paragraph 28
of the Report. In that case emphasis was laid upon power
available with the High Court either under Articles 226 and 227 of
the Constitution or under Section 482 of the Cr.P.C. to quash a
criminal proceeding even at initial stage to prevent the abuse of
process of law by the inferior courts. But this Court cautioned
that since the powers conferred on the High Court under
aforesaid provisions have no limits, hence more/due care and
caution is required while invoking these powers. In paragraph 29
it was emphasized that the accused can approach the High Court
“to have the proceeding quashed against him when the
complaint does not make out any case against him”. The facts in
the present case are otherwise and required the High Court to

exercise more caution in view of clear allegations in the
complaint petition. The High Court erred in evaluating the merit
of evidence for interfering with a summoning order. Learned
counsel also placed reliance upon judgments in the case of
State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1)
SCC 335 and also in the case of Thermax Ltd. & Ors. v. K.M.
Johny & Ors. (2011) 13 SCC 412 in support of the proposition
that power to quash criminal prosecution is justified where a
criminal proceeding is instituted with malafide or ulterior motives.
In the case of Bhajan Lal (supra) this Court did indicate in para
102, seven kinds of cases where court may exercise power to
quash criminal prosecution but in respect of the 7th category
relating to malafide, this Court used the expression – “manifestly
attended with malafide” and further explained in paragraphs 103
and 104 that the power of quashing should be exercised very
sparingly and with circumspection and that too in the rarest of
rare cases. Paragraphs 103 and 104 are reproduced hereunder :
“103.We also give a note of caution to the effect that
the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will
not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that

the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice.
104. It may be true, as repeatedly pointed out by Mr.
Parasaran, that in a given situation, false and
vexatious charges of corruption and venality may be
maliciously attributed against any person holding a
high office and enjoying a respectable status thereby
sullying his character, injuring his reputation and
exposing him to social ridicule with a view to spite him
on account of some personal rancour, predilections
and past prejudices of the complainant. In such a
piquant situation, the question is what would be the
remedy that would redress the grievance of the verily
affected party? The answer would be that the person
who dishonestly makes such false allegations is liable
to be proceeded against under the relevant provisions
of the Indian Penal Code – namely under Section 182
or 211 or 500 besides becoming liable to be sued for
damages.”
The facts in the case of Thermax Ltd. (supra) were quite
different and there was a clear situation showing that the
complainant was trying to circumvent period of limitation for
moving the Civil Court, by filing a delayed criminal case.
13. On behalf of accused persons reliance has also been
placed upon judgment in the case of M.N. Ojha & Ors. v. Alok
Kumar Srivastav & Anr. (2009) 9 SCC 682. In that case a
complaint filed against the appellants who were bank officials
was quashed because the Court found that it was a counter-blast
to action taken by them in their official capacity for realizing the

loan amount due from the complainant. On facts of that case, it
was easy to hold that the complaint was clearly an abuse of
judicial process and it was also found that averments and
allegations in complaint did not disclose commission of any
offence by appellants. The Magistrate had failed to apply his
mind to the case of the appellants and the High Court had erred
in not even adverting to the basic facts. The factual situation in
the present case is quite otherwise. Reliance was also placed on
behalf of respondents upon judgment in the case of State of
Karnataka v. Muniswamy & Ors. (1977) 2 SCC 699. In that
case, the accused persons pleaded for discharge before the
Sessions Court which was not accepted but the High Court
quashed the proceedings on the ground that there was no
material on the record on the basis of which any tribunal could
reasonably come to the conclusion that the accused were in any
manner connected with the incident leading to the prosecution.
This Court agreed with the views of the High Court on the basis of
peculiar facts of that case showing lack of any data or material
which could create a reasonable likelihood of conviction for any
offence in connection with attempted murder of the complainant.
That judgment also is of no help to the respondents herein in the

light of allegations made in the complaint, the statement of the
complainant on solemn affirmation and the CID Report of
investigation on which the complainant placed reliance and which
was perused by the learned Magistrate.
14. These appeals are therefore allowed, the judgment and
order under appeal passed by the High Court is set aside. We
also set aside the orders passed by the learned Sessions Court
dated 30.11.2011 whereby summoning order was set aside in
respect of accused nos.6 to 8 and accused no.9. In other words,
the order of summoning passed by learned Magistrate dated
02.05.2011 is restored. Before parting with the order we make it
clear that any observations in this order shall not prejudice the
case of either of the parties before the court below and the
criminal complaint case of the appellant must proceed on its own
merits strictly in accordance with law.
15. Although we have set aside the order granting relief to
accused nos.6 to 9 by the Sessions Court, in the interest of
justice, we direct that in the facts of the case accused nos.6 to 9
shall be granted benefit of bail by the learned Magistrate if they
appear within 10 weeks and apply for same. The Magistrate shall
of course be at liberty to set reasonable conditions for such grant.

 …………………………….J.
 [ANIL R. DAVE ]
…………………………….J.
[KURIAN JOSEPH]
 …………………………....J.
 [SHIVA KIRTI SINGH]
New Delhi.
February 11, 2015.
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