Wednesday 14 June 2023

What is the duty of the court before issuing process against accused?

 The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined Under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the Accused to stand the trial, summons should be issued.16 Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the Accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.

22. While summoning an Accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act No. 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the Accused.17 In the present case, the said exercise has not been undertaken.


Criminal Appeal No. 2328 of 2022

Decided On: 02.01.2023

Deepak Gaba and Ors.  Vs. State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

Sanjiv Khanna and J.K. Maheshwari, JJ.

Author: Sanjiv Khanna, J.

Citation: MANU/SC/0001/2023.

Read full Judgment here: Click here.

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