IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL No. 612 OF 2012
(Arising out of S.L.P. (Crl.) No. 9953 of 2010)
Bhushan Kumar Anr. …. Appellant(s)
State (NCT of Delhi) Anr. …. Respondent(s)
2 CRIMINAL APPEAL No. 613 OF 2012
(Arising out of S.L.P. (Crl.) No. 9958 of 2010
J U D G M E N T
1) Leave granted.
2) These appeals are destined opposite a final visualisation and sequence antiquated 30.07.2010 upheld by a High Court of Delhi during New Delhi in Crl.M.C. Nos. 3376 3375 of 2009 whereby a High Court deserted a request of a appellants herein for quashing a summoning sequence antiquated 16.01.2009 upheld by a Metropolitan Magistrate in FIR No. 290 of 2002 purebred during Police Station, Okhla Industrial Area, New Delhi underneath Section 420 of a Indian Penal Code, 1860 (hereinafter referred to as a IPC).
3) Brief facts:
a) The benefaction cases associate to a skill brawl per placement of a resources left behind by late Shri Gulshan Kumar (of T- Series fame). On 19.02.1998, a handwritten note was executed between a appellants and Respondent No. 2 wherein placement of certain resources and shares in opposite companies was supposing for. Subsequently, on 21.02.1998, a uninformed agreement was entered into between a appellants and a Respondent No. 2 that superseded a handwritten note.
b) However, disputes arose shortly after a above pronounced second agreement antiquated 21.02.1998, giving arise to eclectic litigations during a insistence of Respondent No. 2 that are currently tentative adjudication before a High Court.
c) However, after 4 years, due to non-materialization of a agreement antiquated 21.02.1998, a Respondent No. 2 got purebred a benefaction FIR underneath Section 420 IPC opposite all a other signatories to a pronounced agreement wherein usually one of a signatory was a celebration to it. For quashing a pronounced FIR, a appellants herein filed Crl.M.C. No. 59 of 2005 before a High Court.
d) On being sensitive by a State that chargesheet has been filed before a Magistrate, a High Court likely of a Crl.M.C. No. 59 of 2005 vide sequence antiquated 30.03.2009 giving autocracy to a appellants to take suitable stairs in box they are summoned.
e) By sequence antiquated 16.01.2009, a Magistrate summoned a appellants herein. Challenging a pronounced summoning order, a appellants herein filed Criminal M.C. Nos. 3376 and 3375 of 2009 before a High Court.
f) By a impugned sequence antiquated 30.07.2010, a High Court deserted a request of a appellants for quashing a summoning sequence upheld by a Magistrate. Aggrieved by a pronounced order, a appellants have filed these appeals by approach of special leave before this Court.
4) Heard Mr. Ranjit Kumar, schooled comparison warn for a appellants and Mr. Vijay Aggarwal, schooled warn for respondent No.2.
5) The questions that arise for care in these appeals are:
(a) Whether holding believe of an corruption by a Magistrate is same as summoning an indicted to appear?
(b) Whether a Magistrate, while deliberation a doubt of summoning an accused, is compulsory to allot reasons for a same?
6) In this context, it is applicable to remove Sections 190 and 204 of a Code of Criminal Procedure, 1973 (hereinafter referred to as a Code) that review as under:
190. Cognizance of offences by Magistrates. (1) Subject to a supplies of this Chapter, any Magistrate of a initial class, and any Magistrate of a second category specifically empowered in this interest underneath sub-section (2), might take believe of any offence-
(a) on receiving a censure of contribution that consecrate such corruption ;
(b) on a military news of such facts;
(c) on information perceived from any chairman other than a military officer, or on his possess knowledge, that such corruption has been committed.
(2) The Chief Judicial Magistrate might elect any Magistrate of a second category to take believe underneath sub-section (1) of such offences as are within his cunning to scrutinise into or try. 204. Issue of process. (1) If in a opinion of a Magistrate holding believe of an corruption there is sufficient belligerent for proceeding, and a box appears to be-
(a) a summons-case, he shall emanate his summons for a assemblage of a accused, or
(b) a warrant-case, he might emanate a warrant, or, if he thinks fit, a summons, for causing a indicted to be brought or to seem during a certain time before such Magistrate or (if he has no office himself) some other Magistrate carrying jurisdiction.
(2) No summons or aver shall be released opposite a indicted underneath sub-section (1) until a list of a assign witnesses has been filed.
(3) In a move instituted on a censure done in writing, each summons or aver released underneath sub-section (1) shall be accompanied by a duplicate of such complaint.
(4) When by any law for a time being in force any process-fees or other fees are payable, no routine shall be released until a fees are paid and, if such fees are not paid within a reasonable time, a Magistrate might boot a complaint.
(5) Nothing in this territory shall be deemed to impact a supplies of territory 87.
7) In S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. Ors., (2008) 2 SCC 492, a countenance believe was explained by this Court as it merely means turn wakeful of and when used with anxiety to a justice or a Judge, it connotes to take notice of judicially. It indicates a indicate when a justice or a Magistrate takes authorised notice of an corruption with a perspective to initiating record in honour of such corruption pronounced to have been committed by someone. It is wholly a opposite thing from arising of proceedings; rather it is a condition fashion to a arising of record by a Magistrate or a Judge. Cognizance is taken of cases and not of persons.
8) Under Section 190 of a Code, it is a focus of authorised mind to a averments in a censure that constitutes cognizance. At this stage, a Magistrate has to be confident either there is sufficient belligerent for move and not either there is sufficient belligerent for conviction. Whether a justification is adequate for ancillary a self-assurance can be dynamic usually during a hearing and not during a theatre of enquiry. If there is sufficient belligerent for move afterwards a Magistrate is empowered for distribution of routine underneath Section 204 of a Code.
9) A serve is a routine released by a Court job on a chairman to seem before a Magistrate. It is used for a purpose of notifying an particular of his authorised requirement to seem before a Magistrate as a response to defilement of law. In other words, a summons will announce to a chairman to whom it is destined that a authorised move has been started opposite that chairman and a date and time on that a chairman contingency seem in Court. A chairman who is summoned is legally firm to seem before a Court on a given date and time. Willful insubordination is probable to be punished underneath Section 174 IPC. It is a belligerent for disregard of court.
10) Section 204 of a Code does not assign a Magistrate to categorically state a reasons for distribution of summons. It clearly states that if in a opinion of a Magistrate holding believe of an offence, there is sufficient belligerent for proceeding, afterwards a summons might be issued. This territory mandates a Magistrate to form an opinion as to either there exists a sufficient belligerent for summons to be released though it is nowhere mentioned in a territory that a pithy exegesis of a same is mandatory, definition thereby that it is not a pre-requisite for last a effect of a summons issued.
11) Time and again it has been staid by this Court that a summoning sequence underneath Section 204 of a Code requires no pithy reasons to be staid since it is needed that a Magistrate contingency have taken notice of a accusations and practical his mind to a allegations done in a military news and a materials filed therewith.
12) In Kanti Bhadra Shah Anr. vs. State of West Bengal (2000) 1 SCC 722, a following thoroughfare will be apposite in this context:
12. If there is no authorised requirement that a hearing justice should write an sequence display a reasons for framing a charge, since should a already impeded hearing courts be serve impeded with such an additional work. The time has reached to adopt all probable measures to assist a justice procedures and to marker out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write minute orders during opposite stages merely since a warn would residence arguments during all stages, a snail-paced swell of record in hearing courts would serve be slowed down. We are entrance opposite interlocutory orders of Magistrates and Sessions Judges using into several pages. We can interpretation if such a minute sequence has been upheld for culminating a record before them. But it is utterly nonessential to write minute orders during other stages, such as arising process, remanding a indicted to custody, framing of charges, flitting over to subsequent stages in a hearing (emphasis supplied)
13) In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi Ors. (1976) 3 SCC 736, this Court hold that it is not a range of a Magistrate to enter into a minute contention on a merits or demerits of a case. It was serve hold that in last either a routine should be issued, a Magistrate can take into care improbabilities appearing on a face of a censure or in a justification led by a complainant in support of a allegations. The Magistrate has been given an undoubted option in a matter and a option has to be judicially exercised by him. It was serve hold that once a Magistrate has exercised his discretion, it is not for a High Court, or even this Court, to surrogate a possess option for that of a Magistrate or to inspect a box on merits with a perspective to find out either or not a allegations in a complaint, if proved, would eventually finish in self-assurance of a accused.
14) In Dy. Chief Controller of Imports Exports vs. Roshanlal Agarwal Ors. (2003) 4 SCC 139, this Court, in para 9, hold as under:
9. In last a doubt either any routine is to be released or not, what a Magistrate has to be confident is either there is sufficient belligerent for move and not either there is sufficient belligerent for conviction. Whether a justification is adequate for ancillary a conviction, can be dynamic usually during a hearing and not during a theatre of inquiry. At a theatre of arising a routine to a accused, a Magistrate is not compulsory to record reasons. This doubt was deliberate recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after seeing a law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was hold as follows: (SCC p. 749, para 6) The legislature has stressed a need to record reasons in certain situations such as exclusion of a censure but arising process.
There is no such authorised requirement imposed on a Magistrate for flitting minute sequence while arising summons. The routine released to indicted can't be quashed merely on a belligerent that a Magistrate had not upheld a vocalization order.
15) In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi Anr., (2009) 2 SCC 147, this Court, in divide 23, hold as under:
23. It is a staid authorised position that during a theatre of arising process, a Magistrate is especially endangered with a allegations done in a censure or a justification led in support of a same and he is usually to be prima facie confident either there are sufficient drift for move opposite a accused.
16) This being a staid authorised position, a sequence upheld by a Magistrate could not be faulted with usually on a belligerent that a summoning sequence was not a reasoned order.
17) It is fundamental in Section 251 of a Code that when an indicted appears before a hearing Court pursuant to summons released underneath Section 204 of a Code in a summons hearing case, it is a bounden avocation of a hearing Court to delicately go by a allegations done in a assign piece or censure and cruise a justification to come to a end either or not, elect of any corruption is disclosed and if a answer is in a affirmative, a Magistrate shall explain a piece of a indictment to a indicted and ask him either he pleads guilty otherwise, he is firm to liberate a indicted as per Section 239 of a Code.
18) The end of a High Court that a petition filed underneath Section 482 of a Code is not maintainable can't be supposed in perspective of several decisions of this Court. (vide Pepsi Foods Ltd. Anr. vs. Special Judicial Magistrate Ors. (1998) 5 SCC 749, Dhariwal Tobacco Products Ltd. Ors. vs. State of Maharashtra Anr. (2009) 2 SCC 370 and M.A.A. Annamalai vs. State of Karnataka Anr. (2010) 8 SCC 524).
19) In a light of a above discussion, we interpretation that a petition filed before a High Court underneath Section 482 of a Code was maintainable. However, on merits, a impugned sequence antiquated 30.07.2010 upheld by a High Court of Delhi is confirmed, consequently, a appeals destroy and a same are dismissed. In perspective of a exclusion of a appeals, MM/South East 02, Patiala House, New Delhi is giveaway to ensue serve in suitability with law, uninfluenced by any regard done in these appeals.
(P. SATHASIVAM) .J.
(J. CHELAMESWAR) NEW DELHI;
APRIL 4, 2012.