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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 612 OF 2012
(Arising out of S.L.P. (Crl.) No. 9953 of 2010)
Bhushan Kumar & Anr. .... Appellant(s)
Versus
State (NCT of Delhi) & Anr. .... Respondent(s)
WITH
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
P.Sathasivam,J.
1) Leave granted.
2) These appeals are directed against the final judgment
and order dated 30.07.2010 passed by the High Court of Delhi
at New Delhi in Crl.M.C. Nos. 3376 & 3375 of 2009 whereby
the High Court rejected the prayer of the appellants herein for
quashing the summoning order dated 16.01.2009 passed by
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the Metropolitan Magistrate in FIR No. 290 of 2002 registered
at Police Station, Okhla Industrial Area, New Delhi under
Section 420 of the Indian Penal Code, 1860 (hereinafter
referred to as “the IPC”).
3) Brief facts:
a) The present cases pertain to a property dispute regarding
distribution of the assets left behind by late Shri Gulshan
Kumar (of T-Series fame). On 19.02.1998, a handwritten note
was executed between the appellants and Respondent No. 2
wherein distribution of certain assets and shares in different
companies was provided for. Subsequently, on 21.02.1998, a
fresh agreement was entered into between the appellants and
the Respondent No. 2 which superseded the handwritten note.
b) However, disputes arose soon after the above said second
agreement dated 21.02.1998, giving rise to multifarious
litigations at the behest of Respondent No. 2 which are
presently pending adjudication before the High Court.
c) However, after 4 years, due to non-materialization of the
agreement dated 21.02.1998, the Respondent No. 2 got
registered the present FIR under Section 420 IPC against all
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the other signatories to the said agreement wherein only one of
the signatory was a party to it. For quashing the said FIR, the
appellants herein filed Crl.M.C. No. 59 of 2005 before the High
Court.
d) On being informed by the State that chargesheet has
been filed before the Magistrate, the High Court disposed of
the Crl.M.C. No. 59 of 2005 vide order dated 30.03.2009 giving
liberty to the appellants to take appropriate steps in case they
are summoned.
e) By order dated 16.01.2009, the Magistrate summoned
the appellants herein. Challenging the said summoning order,
the appellants herein filed Criminal M.C. Nos. 3376 and 3375
of 2009 before the High Court.
f) By the impugned order dated 30.07.2010, the High Court
rejected the prayer of the appellants for quashing the
summoning order passed by the Magistrate. Aggrieved by the
said order, the appellants have filed these appeals by way of
special leave before this Court.
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4) Heard Mr. Ranjit Kumar, learned senior counsel for the
appellants and Mr. Vijay Aggarwal, learned counsel for
respondent No.2.
5) The questions which arise for consideration in these
appeals are:
(a) Whether taking cognizance of an offence by the
Magistrate is same as summoning an accused to
appear?
(b) Whether the Magistrate, while considering the
question of summoning an accused, is required to
assign reasons for the same?
6) In this context, it is relevant to extract Sections 190 and
204 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “the Code”) which read as under:
“190. Cognizance of offences by Magistrates. (1) Subject
to the provisions of this Chapter, any Magistrate of the first
class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
offence ;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
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has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to
inquire into or try.”
“204. Issue of process. (1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87.”
7) In S.K. Sinha, Chief Enforcement Officer vs. Videocon
International Ltd. & Ors., (2008) 2 SCC 492, the expression
“cognizance” was explained by this Court as it merely means
“become aware of” and when used with reference to a court or
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a Judge, it connotes “to take notice of judicially”. It indicates
the point when a court or a Magistrate takes judicial notice of
an offence with a view to initiating proceedings in respect of
such offence said to have been committed by someone. It is
entirely a different thing from initiation of proceedings; rather
it is the condition precedent to the initiation of proceedings by
the Magistrate or the Judge. Cognizance is taken of cases and
not of persons.
8) Under Section 190 of the Code, it is the application of
judicial mind to the averments in the complaint that
constitutes cognizance. At this stage, the Magistrate has to be
satisfied 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 enquiry. If
there is sufficient ground for proceeding then the Magistrate is
empowered for issuance of process under Section 204 of the
Code.
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9) A summon is a process issued by a Court calling upon a
person to appear before a Magistrate. It is used for the
purpose of notifying an individual of his legal obligation to
appear before the Magistrate as a response to violation of law.
In other words, the summons will announce to the person to
whom it is directed that a legal proceeding has been started
against that person and the date and time on which the
person must appear in Court. A person who is summoned is
legally bound to appear before the Court on the given date and
time. Willful disobedience is liable to be punished under
Section 174 IPC. It is a ground for contempt of court.
10) Section 204 of the Code does not mandate the Magistrate
to explicitly state the reasons for issuance of summons. It
clearly states that if in the opinion of a Magistrate taking
cognizance of an offence, there is sufficient ground for
proceeding, then the summons may be issued. This section
mandates the Magistrate to form an opinion as to whether
there exists a sufficient ground for summons to be issued but
it is nowhere mentioned in the section that the explicit
narration of the same is mandatory, meaning thereby that it is
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not a pre-requisite for deciding the validity of the summons
issued.
11) Time and again it has been stated by this Court that the
summoning order under Section 204 of the Code requires no
explicit reasons to be stated because it is imperative that the
Magistrate must have taken notice of the accusations and
applied his mind to the allegations made in the police report
and the materials filed therewith.
12) In Kanti Bhadra Shah & Anr. vs. State of West
Bengal (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 snailpaced 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………” (emphasis supplied)
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13) In Smt. Nagawwa vs. Veeranna Shivalingappa
Konjalgi & Ors. (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 & Exports vs.
Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in
para 9, held as under:
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“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. This
question was considered recently in U.P. Pollution Control
Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after
noticing the law laid down in Kanti Bhadra Shah v. State of
W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749,
para 6)
“The legislature has stressed the need to record reasons
in certain situations such as dismissal of a complaint
without issuing process. There is no such legal requirement
imposed on a Magistrate for passing detailed order while
issuing summons. The process issued to accused cannot be
quashed merely on the ground that the Magistrate had not
passed a speaking order.”
15) In U.P. Pollution Control Board vs. Dr. Bhupendra
Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in
paragraph 23, held as under:
“23. It is a settled legal position that at the stage of issuing
process, the Magistrate is mainly concerned with the
allegations made in the complaint or the evidence led in
support of the same and he is only to be prima facie satisfied
whether there are sufficient grounds for proceeding against
the accused.”
16) This being the settled legal position, the order passed by
the Magistrate could not be faulted with only on the ground
that the summoning order was not a reasoned order.
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17) It is inherent in Section 251 of the Code that when an
accused appears before the trial Court pursuant to summons
issued under Section 204 of the Code in a summons trial case,
it is the bounden duty of the trial Court to carefully go
through the allegations made in the charge sheet or complaint
and consider the evidence to come to a conclusion whether or
not, commission of any offence is disclosed and if the answer
is in the affirmative, the Magistrate shall explain the
substance of the accusation to the accused and ask him
whether he pleads guilty otherwise, he is bound to discharge
the accused as per Section 239 of the Code.
18) The conclusion of the High Court that the petition filed
under Section 482 of the Code is not maintainable cannot be
accepted in view of various 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).
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19) In the light of the above discussion, we conclude that the
petition filed before the High Court under Section 482 of the
Code was maintainable. However, on merits, the impugned
order dated 30.07.2010 passed by the High Court of Delhi is
confirmed, consequently, the appeals fail and the same are
dismissed. In view of the dismissal of the appeals, MM/South
East 02, Patiala House, New Delhi is free to proceed further in
accordance with law, uninfluenced by any observation made
in these appeals.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(J. CHELAMESWAR)
NEW DELHI;
APRIL 4, 2012.
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