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The Delhi High Court recently observed that summoning an accused in a criminal case is a serious matter and criminal law cannot be set in motion in a mechanical and routine manner. 

The court was hearing a petition filed under Section 482 CrPC to quash the summons issued by the Magistrate. 

The complainant had filed police complaint against the petitioner on 5th January, 2011 alleging that despite receiving entire agreed sale consideration, accused no. 2 and 3, being directors, failed to execute sale deed and the petitioner in connivance released documents out of their escrow account, thereby committed criminal breach of trust under sec. 409 of the Indian Penal Code, 1860. 

The petitioner, who is an advocate, contended that the complainant did not produce any documentary evidence to substantiate its claims. Moreover, the Trial Court also did not assign any reason of basis while observing that the petitioner has committed an offence. 

The petitioner further contended that the observation was in contradiction to and in ignorance of the evidence available on the record. 

Justice Chandra Dhari Singh, who was seized of the matter, noted that as per the complaint filed by the complainant, there were no allegations that the documents deposited in escrow account had been utilized by the petitioner for his personal gain and advantage which is one of the essential ingredients of Section 409 of the IPC. It added that the facts of the case proved that no case was made out against the petitioner. 

"The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that prosecution need to prove the actual mode of misappropriation and once entrustment of all dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with. In the instant case, the Court below while issuing summons against the petitioner has overlooked the facts that no material on the record to establish any misappropriation of the money of the escrow account and therefore, the Court below has passed the impugned order without application of mind," the Court observed.

Court, while quashing the summons issued against the Petitioner/Accused also noted that the facts and circumstances as well as allegations in the complaint must be kept in mind. Atleast, the basic essential ingredients of criminal breach of trust must be made out, which are missing in the present matter, it added. 

]Court observed, "Criminal proceedings are not shortcut for other remedies. The petitioner is a practicing advocate and he has given his professional services to the parties and there is no material on record to establish prima facie that he has committed any offence as alleged in the complaint"

While traversing the significance of a summons in a criminal case, the court observed that criminal law could not be set into motion as a matter of course. Court stressed, 

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The complainant has to bring on record material to support his allegations in the complaint to have criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is the silent spectator at the time of recording of preliminary evidences before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

It is settled law that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial", further observed the court. 

Case Title:- Yogesh Jagia v Jindl Biochem Pvt Ltd.