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$r'48 HIGH COURT OF DELHI
CRL.M.C. 90/2011
JOGINDER SINGH SACHDEVA & ORS Petitioners
Through: Mr.H.S.Sharma, Adv.
CRL.M.C. 90/2011
JOGINDER SINGH SACHDEVA & ORS Petitioners
Through: Mr.H.S.Sharma, Adv.
VERSUS
STATE Respondent
Through: Mr.Navin Sharma, APP
Through: Mr.Navin Sharma, APP
CORAM:
HONBLE MR. JUSTICE V.K. SHALl
22.09.2011 This is a petition for setting aside the summoning order dated
10.05.2010 passed in FIR No. 4/2008 of P.S. Rajouri Garden, u/s 498A/406/34 IPC. The second prayer made by the learned counsel for the petitioners is for quashing of FIR qua the present petitioners.
Learned counsel for the petitioners has fairly conceded that so far as the second prayer is concerned, it is not pressed.
However, with regard to the first prayer his contention is that the aforesaid FIR was registered under Section 498A/406/34
IPC on the basis of the complaint made by one Preeti © Shalu against her husband and in-laws. The matter was investigated by the police and thereafter a final report was filed in the court of competent jurisdiction. In the final report the names of Joginder Singh Sachdeva, Amrit Kaur, Gurcharan Singh and Jaspal Singh were shown in column
No.12 while only her husband, Gurdeep Singh was sent for trial. It has been pointed out by the learned APP that
2011:DHC:12936 F Gurdeep Singh has been declared as a proclaimed offender.
The column No. 12 pertains to the names of the accused persons who are not sent for trial either on account of deficiency of evidence or there is no evidence at all against them. The learned magistrate on consideration of final report passed a very cryptic order dated 10.05.2010 which reads as under:-
"10.05.2010 Fresh charge sheet filed. It be checked and registered.
Present: Ld. APP for State.
•
I take cognizance u/s 498A/406/34 IPC against the
• accused persons.
Let all the accused persons be summoned and notice to their sureties be issued for 19.11.2010."
By virtue of the aforesaid order the learned Magistrate has taken cognizance of the offence u/s 498A/406/34 IPC against the accused persons and thereafter permitted summoning of all the accused persons including the present petitioners, who have not been sent for trial.
The grievance of the learned counsel for the petitioners is that the order of taking cognizance qua the present petitioners who are not sent for trial is passed in a mechanical manner without any application of mind and, therefore, deserves to be set aside. The learned APP is also not able to support the order of summoning.
I have considered the submissions made from respective side.
No doubt, the order of summoning need not to be an elaborate order but it must reflect due application of mind so that the person who is summoned knows the reason as to why he is being summoned to face the trial. This will be more so in a case where a particular accused person is not sent for trial by the JO. In the instant case, the learned Magistrate without discussing as to how the present petitioners were found by her to be prima facie involved in the commission of the aforesaid offences has directed their summoning after taking cognizance of the offence qua them. No reasons have been given in the impugned order, therefore, the order in my considered opinion cannot be sustained.
The Supreme Court in case titled Pepsi Foods Ltd. vs.
Special Judicial Magistrate (1998) 5 SCC 749 has very categorically observed that summoning of a citizen as an accused in a criminal trial is very serious and should not be resorted to in a routine manner as it not only infringes on his personal liberty but also results in mental torture and harassment of facing unending trial. Accordingly, I feel that the order dated 10.05.2010 is not sustainable in the eyes of law, therefore, the same is set aside and the matter is remanded back to the Court concerned with directions that the learned Magistrate shall consider the matter qua the present petitioners afresh and then pass such an appropriate order as may be warranted by law. For this purpose petitioners need not be present before the trial Court.
22.09.2011 This is a petition for setting aside the summoning order dated
10.05.2010 passed in FIR No. 4/2008 of P.S. Rajouri Garden, u/s 498A/406/34 IPC. The second prayer made by the learned counsel for the petitioners is for quashing of FIR qua the present petitioners.
Learned counsel for the petitioners has fairly conceded that so far as the second prayer is concerned, it is not pressed.
However, with regard to the first prayer his contention is that the aforesaid FIR was registered under Section 498A/406/34
IPC on the basis of the complaint made by one Preeti © Shalu against her husband and in-laws. The matter was investigated by the police and thereafter a final report was filed in the court of competent jurisdiction. In the final report the names of Joginder Singh Sachdeva, Amrit Kaur, Gurcharan Singh and Jaspal Singh were shown in column
No.12 while only her husband, Gurdeep Singh was sent for trial. It has been pointed out by the learned APP that
2011:DHC:12936 F Gurdeep Singh has been declared as a proclaimed offender.
The column No. 12 pertains to the names of the accused persons who are not sent for trial either on account of deficiency of evidence or there is no evidence at all against them. The learned magistrate on consideration of final report passed a very cryptic order dated 10.05.2010 which reads as under:-
"10.05.2010 Fresh charge sheet filed. It be checked and registered.
Present: Ld. APP for State.
•
I take cognizance u/s 498A/406/34 IPC against the
• accused persons.
Let all the accused persons be summoned and notice to their sureties be issued for 19.11.2010."
By virtue of the aforesaid order the learned Magistrate has taken cognizance of the offence u/s 498A/406/34 IPC against the accused persons and thereafter permitted summoning of all the accused persons including the present petitioners, who have not been sent for trial.
The grievance of the learned counsel for the petitioners is that the order of taking cognizance qua the present petitioners who are not sent for trial is passed in a mechanical manner without any application of mind and, therefore, deserves to be set aside. The learned APP is also not able to support the order of summoning.
I have considered the submissions made from respective side.
No doubt, the order of summoning need not to be an elaborate order but it must reflect due application of mind so that the person who is summoned knows the reason as to why he is being summoned to face the trial. This will be more so in a case where a particular accused person is not sent for trial by the JO. In the instant case, the learned Magistrate without discussing as to how the present petitioners were found by her to be prima facie involved in the commission of the aforesaid offences has directed their summoning after taking cognizance of the offence qua them. No reasons have been given in the impugned order, therefore, the order in my considered opinion cannot be sustained.
The Supreme Court in case titled Pepsi Foods Ltd. vs.
Special Judicial Magistrate (1998) 5 SCC 749 has very categorically observed that summoning of a citizen as an accused in a criminal trial is very serious and should not be resorted to in a routine manner as it not only infringes on his personal liberty but also results in mental torture and harassment of facing unending trial. Accordingly, I feel that the order dated 10.05.2010 is not sustainable in the eyes of law, therefore, the same is set aside and the matter is remanded back to the Court concerned with directions that the learned Magistrate shall consider the matter qua the present petitioners afresh and then pass such an appropriate order as may be warranted by law. For this purpose petitioners need not be present before the trial Court.
ORDER
7. With these observations, the petition is disposed of. Copy of this order be sent to the Court concerned. V.K. SHALl, J SEPTEMBER 22, 2011 mr