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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Whether the Pocso court must record reasons if he could not record evidence of child within thirty days of taking cognizance of offence?

Even otherwise, Section 35 of the POCSO Act allows the Special Court taking cognizance of the offence to record evidence of the  child after a period of thirty days from the date on which cognizance of the offence has been taken. The only rider in this regard imposed by the provision of law is that the Court must record reasons for the delay. In the present case, while allowing recording of evidence after a period of thirty days from the date of taking of cognizance, the Special Court did not record any reasons for the delay. But, the deficiency would have to be considered only as an irregularity in the light of the petitioner not raising any specific objection to the application vide exhibit 24. If the petitioner had raised objection and showed that there was any possibility of prejudice being caused to his defence, the case would have been different and perhaps, the challenge now made to the order dated 2nd March 2016 by the petitioner would have been required to be considered in the perspective of the prejudice factor. This is not the case here and, therefore, I do not think that failure of the learned Special Judge to record reasons for belated recording of the evidence of the victim has resulted in an illegality, causing prejudice to the defence of the petitioner. 

{Para 7}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Writ Petition No. 68 of 2018

 Shubham Vilas Tayade,  Vs The State of Maharashtra, through Police

Coram : S. B. Shukre, J

Dated : 31st January 2018

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Whether the magistrate must give reasons while differing with the final report of police exonerating accused?

After going through the record, it is evident that the complaint petition was thoroughly investigated by the investigating agency and thereafter, it was found that it was not a case of criminal offence, rather the investigating officer had noticed that it was a civil dispute. Accordingly, petitioner's name was not included in column No. 11 of the charge-sheet. Meaning thereby that petitioner was not forwarded as accused in the case and final report was submitted. So far as point, which has been raised by the learned counsel for the complainant that even in business transaction, there can be case of criminal offence, this Court is in agreement with his submission, but in the present case, the case was investigated thoroughly by the statutory investigating agency and no sufficient material was found to forward the petitioner to face trial and his name was not incorporated in the charge-sheet as accused. The learned Chief Judicial Magistrate though was competent to pass order of cognizance, differing with the police report, it was essential on his part to assign reason succinctly for differing with the police report. On perusal of the impugned order, the Court is satisfied that no reason has been assigned by the learned Magistrate and as such, on this very point, the order of cognizance is liable to be set aside.

8. It goes without saying that if an investigating agency after thorough investigation submits final report exonerating accused persons, the said report may not be treated as waste paper. Once such report is submitted, the learned Magistrate at the time of differing with the police report is required to assign succinct reason. Since in the order impugned, no reason has been assigned, the Court is satisfied that order impugned is liable to be set aside, particularly; in view of nature of accusation, as has been levelled in the complaint petition.

IN THE HIGH COURT OF PATNA

Cr. Misc. No. 21406 of 2013

Decided On: 16.09.2016

S.M. Mahtab Ahmad  Vs. The State of Bihar and Ors.

Hon'ble Judges/Coram:

Rakesh Kumar, J.

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Whether appellate court can take additional evidence without recording reasons?

Section 391 of the Code, insofar as relevant for the purpose of this appeal reads as follows:

Appellate Court may take further evidence or direct it to be taken-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2)-(4)....

7. A bare reading of the provision makes it clear that the Section invests the appellate Court with the power to record additional evidence, provided it is satisfied, for the reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be decided on the evidence which was before the Trial Court, power under the Section has to be exercised with caution and circumspection so as to meet the ends of justice and not as a matter of course.

8. In Rambhau and Anr. v. State of Maharashtra MANU/SC/0309/2001 : 2001CriLJ2343 , this Court has held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. Admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the legislature had put the safety valve by requiring recording of reasons. Thus, recording of reasons is a condition precedent for exercise of power under Section 391 of the Code and an order bereft of reasons would tantamount to non-application of mind, rendering the exercise of power under the Section, bad in law.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 719 of 2009 (Arising out of SLP(Crl.) No. 7576/2008)

Decided On: 13.04.2009

Ajay Kumar Garg Vs. Gaurav and Anr.

Hon'ble Judges/Coram:

D.K. Jain and R.M. Lodha, JJ.

Citation: (2017) 11 SCC 469.

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Whether recording of reasons for grant of ex parte injunction is mandatory?

As held by the Supreme Court in the case of Shiv
Kumar Chadha (supra), the power to grant
injunction is an extraordinary power vested in
the Court to be exercised taking into
consideration the facts and circumstances of a
particular case, and the Courts have to be more
cautious when the said power is being exercised
without notice or hearing the party, which is to
be affected by the order so passed. The Supreme
Court has also, inter alia, held that recording
the reasons for grant of ex parte injunction,
cannot be held to be a mere formality and that
whenever the Court considers it necessary in
the facts and circumstances of a particular
case to pass an order of injunction without
notice to other side, it must record the
reasons for doing so and should take into

consideration, while passing an order of
injunction, all relevant factors, including as to
how the object of granting injunction itself
shall be defeated if an ex parte order is not
passed. It has also been held that the proviso
to Rule 3 of Order XXXIX of the Code also
attracts the principle that if a statute requires
a thing to be done in a particular manner, it
should be done in that manner and not otherwise.
It is true that in the case of A. Venkatasubbiah
Naidu (supra) the Supreme Court has observed that
if the Court, passing ex parte injunction, did
not record reasons, such order can be deemed to
contain such requirements by implication, even
if they are not stated in so many words.
However, in the instant case, the trial Court has
failed to record reasons expressly or impliedly
as to how the object of injunction would be
defeated if the ex parte order was not granted.
The impugned order, therefore, could not be said
to be in conformity with the mandatory provision
contained in Rule 3 of Order XXXIX of CPC.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 125 of 2016

M/S WIM PLAST LTD & 1
V
M/S SYMPHONY LTD & 1.

CORAM:  MS.JUSTICE BELA M. TRIVEDI
Date : 26/04/2016
Citation: AIR 2017(NOC)76 GUJ

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