Supreme Court: Under which circumstances, Magistrate is not required to record reasons for passing the order of issue process?

 In Kanti Bhadra Shah and Anr. v. State of West Bengal   MANU/SC/0004/2000 : (2000) 1 SCC 722, the following passage will be apposite in this context:

12. If there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail- paced progress of proceedings in trial Courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.... {Para 12}

(Emphasis supplied)

13. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors.   MANU/SC/0173/1976 : (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.

14. In Dy. Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors.   MANU/SC/0182/2003 : (2003) 4 SCC 139, this Court, in para 9, held as under:

9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 612 of 2012 

Decided On: 04.04.2012

Bhushan Kumar and Ors. Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: 2012 INSC 164, MANU/SC/0297/2012

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No Legal Evidence, No Process: A Session Judge's Compass for Deciding Criminal Revisions Against Orders Issuing Process

 The Core Idea in One Line

An order issuing process cannot survive revision if it rests on no admissible, relevant material connecting the accused to the offence — but a Sessions Judge examining that question in revision must look only at the record that was before the Magistrate, and must never reweigh or reappraise the evidence found there.

What Counts as "Legal Evidence"

"Legal evidence" is admissible material — recognized as such under the Evidence Act — bearing a rational, probative connection to an ingredient of the offence charged. It is not simply anything appearing in the case file. Four elements define it:

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Allahabad HC set aside a summoning order passed by the Special Judge under the SC/ST Act because no opportunity of hearing was given under Section 223(1) BNSS

It is further contended that as per proviso of Section 223(1) of BNSS-2023, no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard but he has failed to do so. Section 223(1) of BNSS-2023 reads as under:-

" 223. Examination of complainant. (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

(2) XXXX"

5. Learned A.G.A. opposed the appeal but did not dispute the legal position of law.

6. Upon hearing the rival submissions and perusal of the record, this Court finds that the learned Special Judge has passed the impugned summoning order without giving opportunity of hearing.

7. Accordingly, the present criminal appeal stands allowed. The impugned summoning order dated 25.04.2025, passed by Special Judge (SC/ST) Act Sonbhadra, is hereby quashed and set-aside. The matter is remanded to the court below to pass a fresh order in accordance with law after providing opportunity of hearing to all the concerned.

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL APPEAL No. - 10890 of 2025

Mekala Chandra Shekar And 2 Others Vs State of U.P. and Another

Author: SHEKHAR KUMAR YADAV, J.

Dated: November 25, 2025

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Bombay HC Quashes FIR Against 85-Yr-Old For 'Inverted' Display Of Indian Flag; Says 'Intention To Insult' Essential Under National Honour Act

Neither the statement

of Deepak Jaysingh nor any material collected by the

prosecution on record indicates that the Applicant

hoisted or displayed the Indian National Flag, or was

involved in its display, on 26.01.2017. Similarly, there is

no material on record to show that any act of the

Applicant was intended to insult or show disrespect to

the honour of the Indian National Flag. To constitute the

offence under Section 2(4) (l), the display of the Indian

National Flag in an inverted manner must be

intentional. Thus, mens rea to cause insult or disrespect,

or to bring the Indian National Flag into contempt,

would be required.

15. Even if the allegations in the FIR and the evidence

collected are accepted as true and correct, it does not

appear that the Applicant displayed the Indian National

Flag with the saffron down, much less that the Applicant

had any such intention. The Applicant’s mere presence

at the place of hoisting of the Flag, as alleged, would not

amount to an offence under Section 2(4) (l) of the

Prevention of Insults to National Honour Act, 1971.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 7 OF 2026

 V. K. Narayanan Vs The State of Maharashtra

CORAM : ASHWIN D. BHOBE, J.

DATED : 23rd FEBRUARY, 2026

Citation: 2026:BHC-AS:9262

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Bombay HC: Criminal revision is maintainable if there is "glaring defect' in the order of issue process by the Magistrate

 I am mindful of the position that the impugned orders being otherwise revisable, ought to have been challenged in a Criminal Revision Application before the Sessions Court. However, I find that this is a glaring enough case, where the Magistrate has proceeded totally without jurisdiction, to exercise supervisory powers vested in this Court under Article 227 of the Constitution of India to right the injustice caused to the Petitioner. Further, this Court, notwithstanding the fact that the Petitioner may have recourse to the remedy of revision, is vested with inherent powers under Sections 482 and 483 of the Cr.P.C. which may be exercised to secure the ends of justice. {Para 14}

 IN THE HIGH COURT OF BOMBAY AT GOA

Criminal Writ Petition Nos. 115 of 2018 and 116 of 2018

Decided On: 04.03.2025

Devendra Darda Vs. State of Goa and Ors.

Hon'ble Judges/Coram:

Valmiki Sa Menezes, J.

Citation: 2025/BHC-GOA/366, MANU/MH/1458/2025.

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Supreme Court Asks Magistrates To Ascertain Truth Of Complaints Before Summoning Accused U/ S.200 CrPC/S.227 BNSS

 Recording the complainant's statement on oath Under Section 200 of the Code of Criminal Procedure is not an empty formality. The object of recording the complainant's statement and witnesses, if any, is to ascertain the truth. The learned Magistrate is duty-bound to put questions to the complainant to elicit the truth. The examination is necessary to enable the Court to satisfy itself whether there are sufficient grounds to proceed against the Accused. After considering the complaint, the documents produced along with the complaint, and the statements of the complainant and witnesses, if any, the learned Magistrate has to apply his mind to ascertain whether there is sufficient ground for proceeding against the Accused. If he is satisfied that there is sufficient ground to proceed against the Accused, then the learned Magistrate has to issue a process in terms of Sub-section (1) of Section 204 of the Code of Criminal Procedure. The corresponding provision under the BNSS is Section 227. Setting criminal law in motion is a serious matter. The Accused faces serious consequences in the sense that he has to defend himself in the trial. {Para 10}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 724 of 2025

Decided On: 26.03.2025

Rekha Sharad Ushir Vs. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2025 INSC 399, MANU/SC/0396/2025.

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Supreme Court: Whether the Magistrate should issue process against Managing director of company if offence is committed by Company?

 In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the Appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company is attributed and imputed to the Appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a direction of a company can be held liable. {Para 36}

37. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

38. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

39. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada (supra), the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction namely where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company. 

13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the Respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.

17. The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 34 of 2015.

Decided On: 09.01.2015

Sunil Bharti Mittal Vs. Central Bureau of Investigation

Hon'ble Judges/Coram:

H.L. Dattu, C.J.I., Madan B. Lokur and A.K. Sikri, JJ.

Author: A.K. Sikri, J.

Citation:  MANU/SC/0016/2015,2015 INSC 18.

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Bombay HC: Officers Appointed To Assess Electricity Theft Are 'Public Servants', Court Can't Issue Process Against Them Without Sanction U/S 197 CrPC

 Section 169 of the Electricity Act, 2003 which defines the term public servants in pursuance to Section 21 of the Indian Penal Code includes the servants or the employees under Section 126 of the Electricity Act, 2003. As discussed above, the Board has authorized various officers including the Junior Engineers and linemen to detect the theft. Hence, they are covered under the definition of public servants in Section 169 of the Electricity Act, 2003. Therefore, the Court is of the view that the learned Judicial Magistrate First Class erred in issuing the process against the petitioners without sanction as required under Section 197 of the Criminal Procedure Code. This issue was not dealt with at all. The impugned order also does not reflect the application of mind. Hence, the petition deserves to be allowed. {Para 22}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 744 OF 2008

 Syed Naeemuddin S/o Syed Khaja, Vs The State of Maharashtra.

 CORAM : S.G. MEHARE, J.

PRONOUNCED ON : SEPTEMBER 12, 2024.

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Whether Session court should set aside order of issue process if prima facie case is made out against accused?

 The aforesaid order was challenged by the Respondents before the Additional Sessions Judge. The Sessions Court held that no offence punishable Under Section 420 read with Section 120-B, Indian Penal Code was made out as the factum of earlier marriage of the Respondent No. 1 was clearly disclosed to the Appellant. The Sessions Judge failed to appreciate the fact that certain events had taken place thereafter, namely, apprising the Appellant about the decree of divorce having been passed and showing the forged copy thereof to him on mobile. The Learned Sessions Court has considered the revision against the summoning order as if after trial the findings of conviction or acquittal was to be recorded. It was a preliminary stage of summoning. For summoning of an Accused, prima facie case is to be made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant. {Para 12.1.}

13. In a challenge by the Appellant to the aforesaid order in the quashing petition, the High Court dismissed the petition without recording any reasons.

14. Considering the material on record, in our opinion the approach of the Learned Sessions Court and the High Court in setting aside the summoning order against the Accused persons i.e. Respondent Nos. 1, 2 and 3 Under Section 420 read with Section 120-B Indian Penal Code is not legally sustainable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2272 of 2024.

Decided On: 26.04.2024

Aniruddha Khanwalkar Vs. Sharmila Das and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation:  MANU/SC/0350/2024.

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Bombay HC: Magistrate Must Conduct Enquiry U/S 202 of CRPC Before Summoning Accused Living Beyond its Jurisdiction

 In order to have implementation of the orders issued

by the Constitution Bench in suo motu Writ Petition dated

16/4/2021, the Registrar General of the Bombay High Court has

also issued a circular on 27/1/2022, clearly issuing the following

directions:-

“2 On receipt of any complaint under Section 138 of

N.I. Act, wherever it is found that any accused is resident of

the area beyond the territorial jurisdiction of the magistrate

concerned, an inquiry shall be conducted by the magistrate

to arrive at sufficient grounds to proceed against the

accused as prescribed under Section 202 of Cr.P.C.

3 While conducting any such inquiry under section

202 of Cr.P.C, the evidence of witnesses on behalf of the

complainant shall be permitted to be taken on affidavit. In

suitable cases, the magistrate may restrict the inquiry to

examination of documents without insisting for examination

of witnesses for satisfaction as to the sufficiency of grounds

for proceeding under the said provision”.

7 In our considered view, the question, referred to the

larger Bench, is already answered by the Constitution Bench of

the Apex Court as above, and therefore, we do not deem it

necessary to answer the reference. {Para 6}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1344 OF 2010

Bansilal S. Kabra Vs Global Trade Finance Limited & Anr

CORAM: DEVENDRA KUMAR UPADHYAYA, C.J,

BHARATI DANGRE, J & ARIF S. DOCTOR, J

DATED : 16th JANUARY 2024.

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What is duty of Magistrate before passing order of issue process against accused who is resident of area beyond his jurisdiction?

 However, regarding non-compliance of Section 202 of the

Code of Criminal Procedure while issuance of process, there is

substance in the contention of learned counsel for the applicants

that the provisions of Section 202 of the Code of Criminal Procedure are mandatory in nature and ought to have been complied in this case. Perusal of title of the complaint demonstrates that accused persons were residents of the place which was beyond the jurisdiction of the learned Magistrate. In such circumstances, it was not open for the learned Magistrate to issue process against them without conducting an enquiry or calling upon the concerned police to conduct enquiry. Since the accused were not residing within the jurisdiction of the Court, it was obligatory on the part of the learned Magistrate to postpone issuance of process against those accused till such enquiry is conducted. It is also brought to the notice of the Court that order passed by the learned Magistrate is not reasoned order. Needless to say that order of issuance of process need not be a detailed order however, it should reflect that the learned Magistrate has applied mind. In both cases, it would not be open for this Court

to quash the complaint but the complaint needs to be relegated back to Trial Court for issuance of process afresh.{Para 6}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 851 OF 2023

Vikram Ambalal Vakil & others Vs The State of Maharashtra 

CORAM : R. M. JOSHI, J.

DATE : 21st AUGUST, 2023.

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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.

 IN THE SUPREME COURT OF INDIA

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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Whether the court can issue process and non bailable warrant against unnamed officers of a Body corporate by their designation?

 The Manager and the Chief Manager, JIPL have not been named and identified in the complaint. Neither does the summoning order name the Manager or the Chief Manager, JIPL, who have been summoned to stand trial Under Section 406 of the Indian Penal Code, 18604. {Para 3}

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.

 IN THE SUPREME COURT OF INDIA

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.

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Supreme Court: Precaution which Magistrate should take before issue of process against accused

A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. {Para 52}

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said Accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the Accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.

29. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra).

30. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1757 of 2022.

Decided On: 11.10.2022

Lalankumar Singh and Ors.  Vs.  State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: B.R. Gavai, J.

Citation: MANU/SC/1301/2022

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Whether it is mandatory for Magistrate to examine witnesses before issue process in cheque dishonour case?

 Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.{Para 38}

39. In the present case, the Magistrate has adverted to:
(i) The complaint;
(ii) The affidavit filed by the complainant;
(iii) The evidence as per evidence list and; and
(iv) The submissions of the complainant.

40. The order passed by the Magistrate cannot be held to be invalid as betraying a non-application of mind. 

Supreme Court

JUSTICE Dr. DHANANJAYA Y. CHANDRACHUD JUSTICE A. S. BOPANNA

Sunil Todi & Ors. Vs. State of Gujarat & Anr.

Criminal Appeal No. 1446 of 2021

3rd December 2021

Author: Dr. Dhananjaya Y. Chandrachud, J.

Citation: 2021 ALL SCR (ONLINE) 722

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Whether the magistrate must conduct enquiry U/S 202(1) of CRPC when a tenant has filed a criminal complaint against landlord residing beyond the jurisdiction of the court?

 By Amendment Act 25 of 2005, Sub-Section (1) of Section 202 Cr.P.C. came to be amended w.e.f. 23.06.2006 and the following words were inserted:-

"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction"

14. The object of the amendment was to place a check on false complaints filed against persons who are living at far-off places. It was made obligatory upon the Magistrate to enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit to find out whether or not there was sufficient ground to proceed against the accused. The use of the word "shall" mean that an enquiry or investigation envisaged under Sub-Section (1) of Section 202 Cr.P.C. is mandatory.

17. In Birla Corporation Ltd. (Supra), the Supreme Court while relying on the decisions in Vijay Dhanuka (Supra); Abhijit Pawar (Supra) and National Bank of Oman v. Barakara Abdul Aziz and Anr. reported as MANU/SC/1123/2012 : (2013) 2 SCC 488 reiterated that holding of enquiry under Section 202 Cr.P.C. is mandatory.

18. In Pepsi Foods Ltd. v. Special Judicial Magistrate & Ors. reported as MANU/SC/1090/1998 : (1998) 5 SCC 749, it was held that summoning of an accused in a criminal case is a serious matter and the criminal law cannot be set into motion as a matter of course. It was further held that:

"28. 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."

19. As enunciated in the decisions referred above, the sole object of bringing the amendment in Sub-Section (1) of Section 202 Cr.P.C. was to save the accused living at far-off places from unnecessary harassment in false and fictitious complaints. In these circumstances, the issue that has arisen in the present case needs to be addressed keeping in view the object and purpose of the amendment.

21. The complainant, is occupying as a tenant the entire ground floor of the very premises, which are mentioned as the Delhi address of the petitioner in the memo of the complaint, the other being an address in Kolkatta. In spite of that, there is not even a whisper let alone an averment to the effect that the petitioner has been residing at the given address in Delhi. In these circumstances, in absence of any averment in the complaint or the material on record to the aforesaid effect coupled with the fact that an alternate address of the petitioner is given which is outside the jurisdiction of the court, then an enquiry ought to have been conducted. When the law casts a duty on the court to conduct an enquiry once an accused is stated to be a resident of a place which is outside the territorial jurisdiction of the court, in the opinion of this Court, in the facts and circumstances of this case, it was obligatory on the part of learned ACMM to conduct an enquiry envisaged under Section 202 Cr.P.C. Accordingly, the impugned order dated 01.10.2016 is set aside and the matter is remanded back to the concerned court for fresh consideration in accordance with law. The matter shall be initially listed before the concerned court on 01.07.2020 for directions.

IN THE HIGH COURT OF DELHI

Crl. M.C. 2427/2018 and Crl. M.A. 8663/2018

Decided On: 25.06.2020

 Madhvi Singh  Vs.  G.K. Hada and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

Citation: MANU/DE/1304/2020

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Supreme Court: Magistrate should consider the following factors before the order of issue process against accused

It cannot be disputed that

while holding the inquiry under Section 202 Cr.P.C. the Magistrate

is required to take a broad view and a prima facie case. However,

even while conducting/holding an inquiry under Section 202

Cr.P.C., the Magistrate is required to consider whether even a prima

facie case is made out or not and whether the criminal proceedings

initiated are an abuse of process of law or the Court or not and/or

whether the dispute is purely of a civil nature or not and/or

whether the civil dispute is tried to be given a colour of criminal

dispute or not.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 168 OF 2020

Govind Prasad Kejriwal Vs State of Bihar 

M. R. Shah, J.

Dated:January 31, 2020.

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Supreme Court: Magistrate should not act as post office while issuing process against accused U/S 202 of CRPC

 Considering the scope of amendment to Section 202
Cr.P.C., in Vijay Dhanuka and Others v. Najima Mamtaj and
Others (2014) 14 SCC 638, it was held as under:-
“12. ….The use of the expression “shall” prima facie makes the
inquiry or the investigation, as the case may be, by the
Magistrate mandatory. The word “shall” is ordinarily mandatory
but sometimes, taking into account the context or the intention, it
can be held to be directory. The use of the word “shall” in all
circumstances is not decisive. Bearing in mind the aforesaid
principle, when we look to the intention of the legislature, we find
that it is aimed to prevent innocent persons from harassment by

unscrupulous persons from false complaints. Hence, in our
opinion, the use of the expression “shall” and the background
and the purpose for which the amendment has been brought, we
have no doubt in our mind that inquiry or the investigation, as the
case may be, is mandatory before summons are issued against
the accused living beyond the territorial jurisdiction of the
Magistrate.”
Since the amendment is aimed to prevent persons residing
outside the jurisdiction of the court from being harassed, it was
reiterated that holding of enquiry is mandatory. The purpose or
objective behind the amendment was also considered by this
Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar and
Another (2017) 3 SCC 528 and National Bank of Oman v.
Barakara Abdul Aziz and Another (2013) 2 SCC 488.
34. 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. The application of mind has to be
indicated by disclosure of mind on the satisfaction. Considering
the duties on the part of the Magistrate for issuance of summons
to accused in a complaint case and that there must be sufficient
indication as to the application of mind and observing that the
Magistrate is not to act as a post office in taking cognizance of
the complaint, in Mehmood Ul Rehman, this Court held as under:-

“22. ….the Code of Criminal Procedure requires speaking order
to be passed under Section 203 Cr.P.C. when the complaint is
dismissed and that too the reasons need to be stated only briefly.
In other words, the Magistrate is not to act as a post office in
taking cognizance of each and every complaint filed before him
and issue process as a matter of course. There must be
sufficient indication in the order passed by the Magistrate that he
is satisfied that the allegations in the complaint constitute an
offence and when considered along with the statements
recorded and the result of inquiry or report of investigation under
Section 202 Cr.P.C., if any, the accused is answerable before the
criminal court, there is ground for proceeding against the
accused under Section 204 Cr.P.C., by issuing process for
appearance. The application of mind is best demonstrated by
disclosure of mind on the satisfaction. If there is no such
indication in a case where the Magistrate proceeds under
Sections 190/204 Cr.P.C., the High Court under Section 482
Cr.PC. is bound to invoke its inherent power in order to prevent
abuse of the power of the criminal court. To be called to appear
before the criminal court as an accused is serious matter
affecting one’s dignity, self-respect and image in society. Hence,
the process of criminal court shall not be made a weapon of
harassment.”
35. In Pepsi Foods Ltd. and Another v. Special Judicial
Magistrate and Others (1998) 5 SCC 749, the Supreme Court has
held that summoning of an accused in a criminal case is a serious
matter and that the order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of

the case and law governing the issue. In para (28), it was held as
under:-
“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.”
The principle that summoning an accused in a criminal case is a
serious matter and that as a matter of course, the criminal case
against a person cannot be set into motion was reiterated in
GHCL Employees Stock Option Trust v. India Infoline Limited
(2013) 4 SCC 505.
36. To be summoned/to appear before the Criminal Court as an
accused is a serious matter affecting one’s dignity and reputation

in the society. In taking recourse to such a serious matter in
summoning the accused in a case filed on a complaint otherwise
than on a police report, there has to be application of mind as to
whether the allegations in the complaint constitute essential
ingredients of the offence and whether there are sufficient
grounds for proceeding against the accused. In Punjab National
Bank and Others v. Surendra Prasad Sinha 1993 Supp (1) SCC
499, it was held that the issuance of process should not be
mechanical nor should be made an instrument of oppression or
needless harassment.
37. At the stage of issuance of process to the accused, the
Magistrate is not required to record detailed orders. But based on
the allegations made in the complaint or the evidence led in
support of the same, the Magistrate is to be prima facie satisfied
that there are sufficient grounds for proceeding against the
accused.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 875 OF 20

BIRLA CORPORATION LIMITED Vs  ADVENTZ INVESTMENTS AND HOLDINGS .

R. BANUMATHI, J.
Dated:May 09, 2019.

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Whether calling husband impotent in pleading amounts to offence of defamation?

 The essentials of offence of defamation are that
there should be some imputation harming the reputation of a
person and publication of such imputation by communicating it to
a person other than a person against whom the imputation is
made.
[ii] Existence of the aforestated two essentials of the
offence of defamation must be ascertained from the allegations
made in the complaint and other material produced on record, if
any, by applying the test of face value or prima facie worth of the
material on record taken as it is, and a detailed analysis of the
material available on record is not permissible.
[iii] The question as to whether or not there is
sufficient evidence to establish guilt of the accused or the question
as to whether or not the imputation has been made in good faith
or for public good or the question as to whether or not the
imputation depicts the factual position, all are the questions which
must be answered on merits of the case after a detailed evidence
is available and not at the stage of issuance of process.
[iv] A defamatory statement made in the plaint or
written statement or a reply gets published the moment such
plaint or written statement or reply is filed in a Court of law.

These principles of law would have to be borne in mind
while examining the impugned order for it's legality or otherwise.
17] Of course, Shri Bajaj, learned Counsel for the applicant
relying upon the case of Raminder Kaur Bedi has submitted that
when the alleged defamatory imputation is made a ground for
seeking divorce and is upheld by the civil court, conviction of the
accused for an offence of defamation would not be possible and,
therefore, the interest of justice would require that the criminal
case is stayed till disposal of the divorce case. The learned
Counsel for the non-applicant submits that this case does not
involve any issue about stay of the criminal proceedings.
18] I think, the learned Counsel for the respondent is right.
What has been challenged in this application is the order of
issuance of process and no issue about the necessity of staying the
trial of the criminal case has arisen in these proceedings and,
therefore, the case of Smt. Raminder Kaur Bedi would not help the
applicant in any manner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.774 OF 2017
Applicant : X (Name withheld)
(Original Accused No.1)
Vs
Non-Applicant : Y (Name withheld)
(Original Complainant)

CORAM : S.B. SHUKRE, J.

PRONOUNCED ON : 2 nd NOVEMBER, 2018.

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Landmark judgments of Supreme Court

1)Whether transfer of property made in violation of injunction order is valid?

 Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor.

Supreme Court of India

Thomson Press (India) Ltd. vs Nanak Builders & Investrs.P.Ltd & ... on 21 February, 2013

Citation;(2013) 5 SCC397

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