CRL.M.C./817/2025 of HITESH KUMAR AND ORS. Vs STATE OF NCT OF DELHI AND ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 07[th] February 2025

+ CRL.M.C. 817/2025 & CRL.M.A. 3815/2025, CRL.M.A. 3816/2025

HITESH KUMAR AND ORS.

.....Petitioners

Through:

Mr. Dhruva Bhagat, Advocate.

versus

STATE OF NCT OF DELHI AND ANR.

.....Respondents

Through: Mr. Digam Singh Dagar, APP for the State with SI Kriti Sikarwar, P.S.: Amar Colony.

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

J U M N T

ANUP JAIRAM BHAMBHANI J.

CRL.M.A. 3814/2025

Exemption granted, subject to just exceptions.

The application stands disposed-of.

CRL.M.C. 817/2025

By way of the present petition filed under section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 („BNSS‟), the petitioners

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impugn order dated 02.12.2024 passed by the learned JMFC, Saket District Courts, New Delhi, whereby the petitioners have been summonsed in complaint case bearing Ct. Case No. 1597/2023. Mr. Dhruva Bhagat, learned counsel appearing for the petitioners submits, that the petitioners are the in-laws of respondent No.2, being –the brother, mother, sister, uncle and aunt of the deceased Raj Kumar. Learned counsel submits that the petitioners are sought to be implicated by respondent No.2 in the death of Raj Kumar only because they are his relatives.

Mr. Bhagat explains, that the deceased died by suicide on 01.08.2023, pursuant to which, having failed to register an FIR with the police, respondent No.2 filed an application under section 156(3) of the Code of Criminal Procedure 1973 („Cr.P.C.‟) before the learned Magistrate. The section 156(3) Cr.P.C. application filed by respondent No. 2 was dismissed by the learned Magistrate vide order dated 08.08.2024, copy of which order has been appended to the present petition.

Thereafter, the pre-summoning evidence led by respondent No. 2, has now culminated in the issuance of the impugned „summoning order‟dated 02.12.2024.

Mr. Bhagat clarifies, that upon careful inspection of the record, it is found that no detailed summoning order has been passed by the learned Magistrate; and the only so-called „summoningorder‟ is the one appended as Annexure-A to the present petition, which reads as follows :

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“Statement of complainant in PSE recorded, no other witness is intended to be examined.

“Issue notice to the proposed accused qua the present complainant (on filing of PF within 15 days) through all permissible modes including speed post, WhatsApp and e-mail, returnable on 05.02.2025.”

(bold in original)

6.Learned counsel argues, that before summoning person, trial court must consider the pre-summoning evidence and summoning order must disclose application of judicial mind, and must set-out what offences, if any, are made-out against which of the proposed accused. 7.Mr. Bhagat states that this principle has been laid-down by the Supreme Court in Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors.,[1] as recently cited with approval by the Supreme Court in its recent judgment in M/s. JM Laboratories & Ors. vs. State of Andhra Pradesh & Anr.,[2] where the Supreme Court has held as under:

“6. However, we do not find it necessary to consider the submissions made by the appellants on various grounds inasmuch as the present appeal is liable to be allowed on the short groundthat the learned Magistrate has issued the process without assigning”any reasons.

* * * * * “8. In the judgment and order of even date in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled “INOX Air Products Limited Now Known as INOX Air Products Private Limited and Another v. The State of Andhra Pradesh”, we have observed thus:

1 (1998) 5 SCC 749 (1998) 5 SCC 749

22025 SCC OnLine SC 208 2025 SCC OnLine SC 208

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“33. It could be seen from the aforesaid order that except recording the submissions of the complainant, no reasons are recorded for issuing the process against the accused persons.

34. In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749 (supra):

“28.Summoning of an accused in

criminal case is serious matter. Criminal lawcannot be set into motion as matter of course. It isnot that the complainant has to bring only twowitnesses to support his allegations in the complaintto have the criminal law set into motion. The orderof the Magistrate summoning the accused mustreflect that he has applied his mind to the facts ofthe case and the law applicable thereto. He has toexamine the nature of allegations made in thecomplaint and the evidence both oral anddocumentary in support thereof and would that besufficient for the complainant to succeed inbringing charge home to the accused. It is not thatthe Magistrate is silent spectator at the time ofrecording of preliminary evidence beforesummoning of the accused. The Magistrate has tocarefully scrutinise the evidence brought on recordand may even himself put questions to thecomplainant and his witnesses to elicit answers tofind out the truthfulness of the allegations orotherwise and then examine if any offence is prima”facie committed by all or any of the accused.35. This Court has clearly held that summoning ofan accused in criminal case is serious matter. It hasbeen held that the order of the Magistrate summoning theaccused must reflect that he has applied his mind to thefacts of the case and the law applicable thereto. This Courtheld that the Magistrate is required to examine the natureof allegations made in the complaint and the evidence, bothoral and documentary in support thereof and as to whetherthat would be sufficient for proceeding against the accused.It has been held that the Magistrate is not silent spectator

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at the time of recording of preliminary evidence beforesummoning the accused.

36. The said law would be consistently following by this Court in catena of judgments including in the cases of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others (2015) 12 SCC 420 and Krishna Lal Chawla and Others v. State of Uttar Pradesh and Another (2021) 5 SCC 435.

37. Recently, Bench of this Court to which one of us (Gavai, J.) was Member, in the case of Lalankumar Singh and Others v. State of Maharashtra 2022 SCC OnLine SC 1383 (supra), has observed thus:

“38.The order of issuance of process is notan empty formality. The Magistrate is required toapply his mind as to whether sufficient ground forproceeding exists in the case or not. The formationof such an opinion is required to be stated in theorder itself. The order is liable to be set aside if noreasons are given therein while coming to theconclusion that there is prima facie case againstthe accused. No doubt, that the order need notcontain detailed reasons. reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation [(2015) 4 SCC 609], which reads thus:

“51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. Thissection relates to commencement of criminalproceeding. If the Magistrate taking cognizance ofa case (it may be the Magistrate receiving thecomplaint or to whom it has been transferred underSection 192), upon consideration of the materialsbefore him (i.e. the complaint, examination of thecomplainant and his witnesses, if present, or reportof inquiry, if any), thinks that there is prima faciecase for proceeding in respect of an offence, heshall issue process against the accused.

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52. wide discretion has been given as to grant or refusal of process and it must be judicially exercised. person ought not to be dragged intocourt merely because complaint has been filed. Ifa prima facie case has been made out, theMagistrate ought to issue process and it cannot berefused merely because he thinks that it is unlikelyto result in conviction.

53. However, the words “sufficient groundfor proceeding” appearing in Section 204 are ofimmense importance. It is these words which amplysuggest that an opinion is to be formed only afterdue application of mind that there is sufficient basisfor proceeding against the said accused andformation of such an opinion is to be stated in theorder itself. The order is liable to be set aside if noreason is given therein while coming to theconclusion that there is prima facie case against theaccused, though the order need not contain detailedreasons. fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”

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

40. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as 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.”

9. In the present case also, no reasons even for the namesake have been assigned by the learned Magistrate. The summoning ”order is totally non-speaking one……

(emphasis supplied)

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8.Upon prima-facie view of the matter, issue notice.

9.Mr. Digam Singh Dagar, learned APP appears on behalf of the State on advance copy; accepts notice; and submits that considering the text of the order passed, as extracted above, the matter may be remanded to the learned Magistrate for re-considering the issue of summoning of the petitioners, in accordance with law. on advance copy; accepts notice; and submits that considering the text of the order passed, as extracted above, the matter may be remanded to the learned Magistrate for re-considering the issue of summoning of the petitioners, in accordance with law.

10.Since the summoning order has proceeded without any reference to any material or evidence on record, nor does it reflect what considerations may have crossed the learned Magistrate‟s mind before she decided to summons all the petitioners for all the offences, this court is of the view that no purpose would be served in even issuing notice to respondent No.2, since there is no argument to made in defence of the impugned order, which is utterly bereft of any discernible application of mind or any reasoning. any material or evidence on record, nor does it reflect what considerations may have crossed the learned Magistrate‟s mind before she decided to summons all the petitioners for all the offences, this court is of the view that no purpose would be served in even issuing notice to respondent No.2, since there is no argument to made in defence of the impugned order, which is utterly bereft of any discernible application of mind or any reasoning.

11.Accordingly, the impugned summoning order dated 02.12.2024 passed by the learned Magistrate in Ct Case No. 1597/2023 is set-aside and the matter is remanded back to the learned Magistrate for re-consideration, in accordance with law.

The learned Magistrate is directed to not only apply their mind to what has come-forth in the pre-summoning evidence recorded in the matter but to also disclose the considerations that persuade them to pass the order, one way or the other. That is the only way an appellate/revisional court would be able to understand the reasonsbehind the order that comes to be passed.

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13.The matter is directed to be placed before the learned Magistrate for re-consideration on the next date of hearing, which is stated to be 04[th]April 2025. re-consideration on the next date of hearing, which is stated to be 04[th]April 2025.

14.The learned Magistrate is reminded, that as articulated by the Supreme Court in several judgments, some of which have been extracted above, summoning of person in criminal case is not trifling matter, but is an extremely serious step which must be addressed with requisite caution. Supreme Court in several judgments, some of which have been extracted above, summoning of person in criminal case is not trifling matter, but is an extremely serious step which must be addressed with requisite caution.

15.The petition stands disposed-of, in the above terms.

16.Pending applications, if any, also stand disposed-of.

FEBRUARY 7, 2025

ANUP JAIRAM BHAMBHANI, J

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