Summoning accused is a serious matter, criminal law cannot be enforced as a matter of course: Delhi High Court

The Delhi High Court observed that summoning a defendant in a criminal case is a serious matter and the criminal law cannot be implemented automatically.

Judge Chandra Dhari Singh further added that a magistrate is the silent spectator at the time of the recording of preliminary evidence before the summons of the accused and must carefully examine the evidence in the file and may even himself ask questions of the complainant and its witnesses to obtain answers in order to discover the veracity of the allegations or otherwise, and then examine whether an offense is prima facie committed by all or part of the defendants.

The Court was dealing with a plea filed by a practicing solicitor registered with the Delhi Bar since 1991 and the plaintiff respondent was a property development company.

It was the case of the plaintiff that the accused not. 1, the plaintiff in the case, in collusion with other defendants, amended the contract for the purchase of space and that the plaintiff committed a breach of trust and enhanced the plaintiff’s deterrence in the documents delivered.

The plaintiff then filed a police report against the petitioner on January 5, 2011, alleging that despite having received the full consideration for the agreed sale, defendant no. 2 and 3, being directors, failed to sign the deed of sale and the applicant, in connivance, published documents on his escrow account, thereby committing a criminal breach of trust under s. 409 of the Indian Penal Code, 1860.

A request under Art. 156(3) of the Cr.PC was also filed by the plaintiff, and see order dated June 30, 2011, this was dismissed. However, the complaint was taken into account and the complainant was asked to produce evidence prior to the summons.

The plaintiff then applied to the judge for the additional sessions against the order dismissing the application under s. 156(3) of the Cr.PC which was also dismissed by order of December 12, 2011.

After reviewing the evidence and reviewing other material on file, the petitioner was summoned by the Metropolitan Magistrate subject to the contested order dated 27 November 2013, which was challenged by the petitioner in the High Court.

The Court noted that, according to the complaint filed by the plaintiff, there was no allegation that the documents deposited in an escrow account had been used by the plaintiff for his personal gain and advantage, which is the one of the essential ingredients of art. 409 of the CPI, the facts of which prove that no charge was brought against the applicant.

“The necessary elements of the offense must be rigorously proven by the prosecution. accused to explain. ‘money from the escrow account and therefore the lower court passed the contested order without enforcement’, the Court observed.

He added “Summoning a defendant in a criminal case is a serious matter. Criminal law cannot be implemented ex officio. The complainant must provide evidence on file to support their allegations in the complaint for the criminal law to be enforced. The magistrate’s order summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable to them. He must consider the nature of the allegations made in the complaint and the oral and documentary evidence supporting them and would that be sufficient for the plaintiff to succeed in bringing the charge against the accused.”

The Court thus observed that the basic essential elements of the criminal breach of trust were missing in this case.

“Criminal proceedings are not a shortcut to other remedies. The petitioner is a practicing lawyer and he has provided his professional services to the parties and there is no evidence in the record to establish prima facie that he committed an alleged infringement in the complaint”, added the Court.

Observing further that the summons order dated 27 November 2013 had not properly considered the facts of the case nor had it stated a reason for summoning the applicant, the Court quashed the summons order. and the grievance that the applicant is subject to annulment.

The plea was therefore upheld.


Citation: 2022 LiveLaw (Del) 562

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