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Synopsis

The Supreme Court has on February 23, 2024 said the order issuing process requires application of mind and it cannot be passed casually for having drastic consequences.

A bench of Justices Abhay S Oka and Ujjal Bhuyan also explained that for issuing the order of summoning, the Magistrate could not have relied upon the same material which was before him when he passed the order calling for the report under Section 202 of the Criminal Procedure Code.

"The reason is that, obviously, he was not satisfied that the material was sufficient to pass the summoning order," the court.

The court allowed an appeal by Shiv Jatia and others against the Punjab and Haryana High Court's order of August 25, 2014. It quashed the complaint filed in court of Chandigarh's Judicial Magistrate first class on July 17, 2004. The court, however, said the proceedings would continue for rest of the accused and they can raise their defences at the time of framing charges or trial.

"The complaint is nearly twenty years old; even the summoning order was passed eleven years ago," the bench said.

After hearing counsel for the parties on merits, the bench said, "We may note that the High Court has not recorded cogent reasons for not entertaining the prayer for quashing the complaint. The only reason given by the High Court is that there were disputed questions of fact, and therefore, the controversy can be decided only after evidence is recorded."

The controversy emanated out of an agreement of September 23, 2002 for the Liquified Petroleum Gas distributorship.

According to the case made out by the appellants, a complaint was filed before the magistrate in 2004 which was referred to police in 2011 after examining witnesses.

However, a report under Section 202 of the CrPC was never submitted by the Police, and without waiting for the said report, the Magistrate passed the summoning order on July 16, 2013 for the offences punishable under Sections 420, 406, 467, 468 and 472 read with Section 120¬B of the IPC and Section 13 of the Essential Commodities Act, 1955.

Holding that the Magistrate was not justified in passing the order to issue a summons, the bench said, "Therefore, an order of remand is warranted. But, we cannot overlook that the complaint subject matter of these appeals was filed on July 17, 2004, and the order of summoning was passed nine years thereafter, i.e. on August 13, 2013."

The bench also said 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 first respondent–complainant as correct, no case was made in the complaint or in the evidence of the first respondent to proceed against the appellants," the bench said.

The bench also pointed out there is no allegation that the accused company was involved, in any manner, with the transaction between the second accused and the first respondent–complainant.  

"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 bench said.