Be careful before sending a summons under criminal law: Delhi High Court | Delhi News

NEW DELHI: The Delhi High Court has observed that summoning a defendant in a criminal case is a serious matter and the criminal law cannot be triggered automatically.
The High Court was seized of a motion filed by a lawyer requesting the cancellation of the summons issued against him on a complaint filed by a real estate development company and its director. The complaint alleged that the petitioner had made changes to the Space Buyers Agreement and had breached trust and made improvements to the plaintiff’s deterrence in the documents delivered.
Judge Chandra Dhari Singh said that it is not that the magistrate is the silent spectator at the time of the recording of preliminary evidence before the summons of the accused, because the magistrate must carefully examine the evidence given in the case and can even himself ask questions to the plaintiff and his witnesses to obtain answers in order to determine the veracity of the allegations or otherwise, and then to examine whether an offense is prima facie committed by all or part of the defendants.
Lead Counsel Ramesh Gupta, representing the Claimant, argued that the Claimant had failed to establish a prima facie case of the commission of an offense under Section 409 of the IPC.
Plaintiff’s counsel argued that the pre-summons evidence and other material on file was properly assessed by the trial court and that all of the material supported the plaintiff’s case.
The judge said that the trial court, when issuing a subpoena against the petitioner, ignored the facts that there was no evidence on the record to establish misappropriation of money from the escrow account and , therefore, the court issued the contested order without application in mind.
The High Court said: “According to the complaint, there is no allegation that the documents lodged in an escrow account were used by the applicant for his personal gain and advantage, which is one of the essential ingredients of article 409 of the ICC.
He added that the petitioner is a practicing lawyer and that he offered his professional services to the parties.