BHUSHAN KUMAR AND ANR. VS STATE (NCT OF DELHI) & ANR.

BHUSHAN KUMAR AND ANR. VS STATE (NCT OF DELHI) & ANR.

Case Name	Bhushan Kumar and Anr. Vs State (NCT of Delhi) & Anr.
Equivalent Citation	AIR2012SC1947
Date of Judgment	April 4th, 2012
Court	Supreme Court of India
Case No.	Criminal Appeal No. 612 of 2012
Case Type	Criminal Appeal
Appellant	Bhushan Kumar & Anr
Respondent	State (Nct of Delhi) & Anr
Bench	2-Judge Bench of P.Sathasivam and J. Chelameswar
Referred	Section 190 of Cr.P.CSection 204 of Cr.P.CSection 257 of Cr.P.CSection 420 of Cr.P.CSection 482 of Cr.P.C

FACTS OF THE CASE:

• The current case is concerned about a property dispute involving the division of the assets that the late Shri Gulshan Kumar left behind(of T-Series fame). A handwritten note was made on 19.02.1998 between the appellants and Respondent No.2 for division of certain assets and shares in various companies as mentioned. Later, the appellants and the Respondent No.2 made a new agreement between them on 21.02.1998, which overruled the handwritten note made on 19.02.1998.
• The dispute arose, when the appellant did not pay the money, even after 4 years of agreement made on 21.02.1998, aggrieved by this the Respondent No.2 has filed the FIR before High Court under Section 420 IPC against all the other persons who were the signatories of the agreement made on 21.02.1998, whereas only one signatory is the party to the current legal dispute.
• The appellants moved before the High Court by filing Crl.M.C.No. 59 of 2005 for the sake of quashing the FIR filed by Respondent No.2. The High court while disposing of Crl.M.C.No.59 of 2005 made an order on 30.03.2009, which gave appellants the freedom to take right and suitable steps when they are summoned.
• On 16.01.2009, the Magistrate issued a summon order to the appellants, challenging this act of Magistrate for issuing summons, the appellants filed Criminal M.C.Nos. 3376 and 3375 of 2009 before the High Court.
• The High Court as a response to the appellants’ challenge, made an order on 30.07.2010, in which it rejected the pleading of the appellants for the sake of quashing the order passed by the Magistrate on 16.01.2009.
• Dissatisfied by this ruling of the High Court the appellants, approached the Supreme Court through Special leave appeal.

ISSUES RAISED:

• Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear?
• Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same?

CONTENTIONS OF THE APPELLANT:

• The appellant contended that the Magistrate of High Court summoned him without stating any explicit reason for summoning the appellant as required by Section 204 of Cr.P.C
• The appellant also argued that the High Court in the revision petition filed before it, without initially taking the cognisance of offence which is required to be done as per Section 190 of Cr.P.C, directly approved the issue of Summons by it in the FIR filed by the Respondent in form of quashing the revision petition.

CONTENTIONS OF THE RESPONDENT:

• The respondent argued that it is nowhere explicitly stated that the magistrate should state reasons while issuing summons in Section 204 of Cr.P.C, it is only stated that after taking the cognisance of the offence, the Magistrate needs to form an opinion on the need to issue summons in the case before it.
• The respondent also contended that the High Court did not take the cognisance of the offence and approved the summons order which is issued by it in FIR initially filed because the Magistrate has already taken the cognisance of the offence at the stage of enquiry as required by Section 190 of Cr.P.C and then summoned as per Section 204 of Cr.P.C.

JUDGEMENT:

The Supreme Court while delivering the judgement in this case referred some of the case laws to resolve the issues in the present case and also referred Sections 190, 204 and 251 of Cr.P.C.

The Apex Court while dealing upon the first issue whether taking cognisance of offence by the Magistrate being same as issuing summons by the Magistrate is being discussed with the help of the following case laws and Sections.

S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors.: In this case, the court defined “cognisance” as getting aware of in general context, whereas in legal context it means that the Magistrate or court judicially takes note of an offence for sake of initiating proceedings related to such offence which is being said to be done by someone. This cognisance process is completely different from proceedings initiation process because cognisance is considered as the procedure which is to be done before initiating proceedings by the Magistrate, another difference being cognisance is taken with reference to cases and not to persons.

According to Section 190 of Cr.P.C, Cognisance is the way of applying judicial mind with respect to the averments in the complaint. In this stage, the Magistrate needs to be convinced about there being sufficient grounds for proceeding initiation, look at this and should not focus on finding sufficient grounds for conviction. Once it is found by the Magistrate that there is sufficient ground for proceeding, then the Magistrate is authorised for the issuing process as per Section 204 Cr.P.C.

The court explained that summoning is a process the court issues to a person with the object of intimidating an individual to appear before the court as it is his legal obligation to do so for abusing the law. It is issued to the directed person for making the person aware that a legal proceeding has begun against him, also mentioning the date and time when he should appear in the court. Such a person is bound by law to appear, if he does not do so he would be punished under Section 174 IPC for Willful disobedience, a ground for contempt of court.

Regarding Second issue of whether the Magistrate is required to state reasons for summoning the accused, the Apex Court referred to Section 204 of Cr.P.C and the following case laws.

Section 204 of Cr.P.C does not make it compulsory for the Magistrate to explicitly assign the reasons for issuing summons. It is clearly mandates that if the Magistrate is of opinion that after taking cognisance of an offence, there is sufficient ground for proceeding, then the summons can be issued, also it is nowhere stated in the section that the reason for issuing summons or doing the above activity by Magistrate needs to make an explanation as compulsion, so it is not as essential element for validity of the summons issued.

In Kanti Bhadra Shah & Anr. V State of West Bengal, the court held that it is not necessary for the Magistrate to mention the detailed orders at other stages like the issuing process as it takes away courts time in the situation where the courts are over-burdened.

In Smt. Nagamma V. Veeranna Shivalingappa Konjalgi & Ors., the court held that the Magistrate is not required to go into in depth discussion regarding merits and demerits of the case, the court also held that while issuing the process the Magistrate needs to consider the differences or mistakes appearing with regards to the complaint or evidence produced by the complainant for strengthening his allegations.

In Dy. Chief Controller of Imports & Exports V Roshanlal Agarwal & Ors., the court held that irrespective of process is issued or not, the Magistrate has to be satisfied that there is sufficient ground for proceeding, not on finding adequate ground for supporting the conviction., it is to be decide only at the trial and not at enquiry stage, also in the stage of issuing process to the accused, the Magistrate need not record reasons.

In the U.P. Pollution Control Board V Dr. Bhupendra Kumar Modi & Anr., the court ruled that it is a settled legal principle that at the timeof issuing process the Magistrate should deal with allegations made in the complaint or the evidence produced in its support, also on are there any adequate grounds for proceeding against the accused.

The Apex Court in the current judgment also affirmed that as per the ruling in Smt. Nagawwa V. Veeranna Shivalingappa Konjalgi & Ors., once the Magistrate used his discretionary power, neither the High Court nor the Supreme court, can use its own discretion as provided to Magistrate or try to examine the merits of the case to find out the veracity of allegations in the complaint, if proved true, the case would finally end convicting the accused. 

The apex Court also described that it is implied in Section 251 of the Cr.P.C that when an accused appears before the court as required by summons issued under Sec 204 of the Code in a summons trial case, the trial court is legally bound to meticulously evaluate the allegations made in the charge sheet or complaint and take into view the evidence to reach to a conclusion whether or not ,any offence commission is disclosed and if the answer is positive, the Magistrate should explain the matter of accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused under Section 239 of the Code.

Finally, the court held that the Petition filed before the High Court is maintainable under Section 482 of the Code, but on merits, the order passed on 30.07.2010 passed by the High Court is affirmed, so, the appeals failed and are dismissed, also supported the Delhi Court to move on with as per law, not getting influenced by decisions made in these appeals.

CONCLUSION:

The case is of great significance as it laid down the rule regarding procedure to be followed in Criminal Summons triable cases. The rule is when the case comes before the Magistrate, initially he needs to take the cognisance of the offence as needed by Sec 190 of Cr.P.C, where he needs to find out whether the allegations made and evidence adduced to strengthen it by the complainant are true, it is also known as inquiry stage. Then if the allegations and evidence produced are proved true and the Magistrate being satisfied by it, through his discretionary powers he needs to issue Summons to the accused without the requirement of disclosing the reasons to the accused as provided under Sec 204 of Cr.P.C.

This principle is of great importance as if the Magistrate goes on stating the reasons for every summoning order he passed, then it would consume the valuable time of trial courts, which are already overburdened with thousands of cases, making the delay of justice to many individuals, thereby individuals losing their hopes on Judiciary. It is also significant as the procedure laid down in this case is such that there is no scope for accused to escape and granting relief to the victim.

written by Ayyapa Reddy Gari Bhavana intern under legal vidhiya