Sunday, 26 August 2018

Whether magistrate should analyse evidence produced prior to passing of order of issue process?

 Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the Respondent and take further steps in the matter. If it is a charge-sheet filed under Section 173 Code of Criminal Procedure, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out.


Civil Appeal No. 1193 of 2012 (Arising out of SLP (C) No. 27535 of 2010)

Decided On: 31.01.2012

 Subramanian Swamy  Vs. Manmohan Singh and Ors.

Hon'ble Judges/Coram:
A.K. Ganguly and G.S. Singhvi, JJ.
Citation:  (2012) 3 SCC 64
Read full judgment: Click here

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