Summons to accused to be postponed until police report is received: Supreme Court

The Supreme Court ruled that a Magistrate cannot issue a summon to an accused person until a police report is received under Section 202 of the Code of Criminal Procedure. 

This judgement reversed a High Court decision which refused to quash a summon issued by a Magistrate. 

The Supreme Court observed that the Magistrate must apply his mind and not issue a summon until the police report is received. 

The court pointed out that issuing a summon has serious consequences and should not be done without careful consideration. 

The case in question involved a director of a company accused of breaching trust by not refunding a security deposit and not accepting empty gas cylinders. 

The accused argued that no offence had been committed and that the dispute was of a civil nature. 

The Supreme Court agreed and quashed the criminal case against the accused, stating that continuing with the complaint would be an abuse of the law.

Reversing the decision of the High Court which had refused to quash the summons issued by the Magistrate, the Supreme Court Bench of Justices Abhay S. Oka and Ujjal Bhuyan observed that the Magistrate cannot issue process to the accused without application of mind and ought to have waited to issue process against the accused until the report was received from the police.

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“After recording the evidence of the three witnesses and perusing the documents on record, the learned Magistrate passed the order calling for the report under Section 202 of the Cr.PC. He postponed the issue of the process. The learned Magistrate ought to have waited until the report was received.”, the Judgment authored by Oka J. observed. The Supreme Court stated that the Magistrate cannot issue the summons until there is satisfaction that the material was sufficient to pass the summoning order

“For issuing the order of summoning, the learned Magistrate could not have relied upon the same material which was before him on 15th December 2011 when he passed the order calling for the report under Section 202 of the Cr.PC. The reason is that, obviously, he was not satisfied that the material was sufficient to pass the summoning order”. The Supreme Court also noted that an order issuing process of summon against the accused has drastic consequences, and hence, should not be issued without an application of mind.

“The order issuing process has drastic consequences. Such orders require the application of mind. Such orders cannot be passed casually. Therefore, in our view, the learned Magistrate was not justified in passing the order to issue a summons.” Background The aforesaid observations of the Supreme Court came while hearing out the criminal appeal preferred by the accused (a director of the company being arraigned as an accused by the complainant) against the decision of the High Court which has refused to quash the summon issued by the magistrate.

Accused No. 1 (Appellant) is a Gas Supplier Company, whereas Accused No. 7 (Respondent No. 2) is a Distributor Gas Company. The gist of the dispute was that the magistrate had issued summons to the appellant-accused no.1 (M/s Energy Infrastructure Pvt. Ltd.) against the complaint lodged by the complainant-respondent no.1 who alleged that the appellant-accused no.1 in connivance with the respondent no.2-accused no. 7 had committed a breach of trust by not refunding the security deposit and not accepting the empty cylinders from respondent no.1-complainant. It is alleged that due to the non-supply of refills by the accused company, the reputation of the respondent no.1-complainant has been adversely affected.

The appellant alleged that the magistrate's summoning order was completely illegal. According to the appellant-accused, the plain reading of the complaint discovers that there is no allegation against the appellants about the commission or omission of any acts which constitute any offence. Hence, it is apparent that no case was made out to issue a process against the appellant-accused. Further, the appellant contended that there exists no contractual relationship between the appellant-accused no. 1 and the complainant-respondent no.1 because the Distributorship Agreement executed by the accused company did not authorise the respondent no.2-accused no.7 to execute the POS agreement on behalf of the company. Therefore, the accused company had no role in this. There is no contractual relationship between the accused company and the respondent no.1-complainant.

Dispute Arising Out of Commercial Transaction Cannot Be Given Criminal Colour Finding force in the appellant-accused no.1 (company), the Supreme Court noted that the appellant has not authorized the distributor respondent no. 2 to execute an agreement on behalf of the company granting the point of sale (sales outlet) authority to the respondent no.1-complainant. “In fact, the entire dispute is of a civil nature arising out of a commercial transaction. Therefore, in our considered view, taking the complaint and documents relied upon by the 1st respondent–complainant as correct, no case was made in the complaint or in the evidence of the 1st respondent to proceed against the appellants.”

“Hence, continuing the complaint against the appellants will amount to an abuse of the process of law. Therefore, a case is made out for quashing the complaint as against the appellants.”, the Supreme Court said. Accordingly, terming the magistrate summons order as inappropriate, the Supreme Court allowed the appeal and quashed the pending criminal case against the appellant.