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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.       612             OF     2012   (Arising out of S.L.P. (Crl.) No. 9953 of 2010)

Bhushan Kumar & Anr.               .... Appellant(s)

Versus

State (NCT of Delhi) & Anr.              .... Respondent(s)

WITH

CRIMINAL     APPEAL     No.       613           OF     2012   (Arising out of S.L.P. (Crl.) No. 9958 of 2010

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) Leave granted.

2) These appeals are directed against the final judgment  

and order dated 30.07.2010 passed by the High Court of Delhi  

at New Delhi in Crl.M.C. Nos. 3376 & 3375  of 2009 whereby  

the High Court rejected the prayer of the appellants herein for  

quashing the summoning order dated 16.01.2009  passed by  

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the Metropolitan Magistrate in FIR No. 290 of 2002 registered  

at Police Station, Okhla Industrial Area, New Delhi under  

Section 420 of the Indian Penal Code, 1860 (hereinafter  

referred to as “the IPC”).

3) Brief facts:

a) The present cases pertain to a property dispute regarding  

distribution of the assets left behind by late Shri Gulshan  

Kumar (of T-Series fame).  On 19.02.1998, a handwritten note  

was executed between the appellants and Respondent No. 2  

wherein distribution of certain assets and shares in different  

companies was provided for.  Subsequently, on 21.02.1998, a  

fresh agreement was entered into between the appellants and  

the Respondent No. 2 which superseded the handwritten note.

b) However, disputes arose soon after the above said second  

agreement dated 21.02.1998, giving rise to multifarious  

litigations at the behest of Respondent No. 2 which are  

presently pending adjudication before the High Court.   

c) However, after 4 years, due to non-materialization of the  

agreement dated 21.02.1998, the Respondent No. 2 got  

registered the present FIR under Section 420 IPC against all  

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the other signatories to the said agreement wherein only one of  

the signatory was a party to it.  For quashing the said FIR, the  

appellants herein filed Crl.M.C. No. 59 of 2005 before the High  

Court.   

d) On being informed by the State that chargesheet has  

been filed before the Magistrate, the High Court disposed of  

the Crl.M.C. No. 59 of 2005 vide order dated 30.03.2009 giving  

liberty to the appellants to take appropriate steps in case they  

are summoned.

e) By order dated 16.01.2009, the Magistrate summoned  

the appellants herein.  Challenging the said summoning order,  

the appellants herein filed Criminal M.C. Nos. 3376 and 3375  

of 2009 before the High Court.

f) By the impugned order dated 30.07.2010, the High Court  

rejected the prayer of the appellants for quashing the  

summoning order passed by the Magistrate.  Aggrieved by the  

said order, the appellants have filed these appeals by way of  

special leave before this Court.

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4) Heard Mr. Ranjit Kumar, learned senior counsel for the  

appellants and Mr. Vijay Aggarwal, learned counsel for  

respondent No.2.

5) The questions which arise for consideration in these  

appeals are:

(a) Whether taking cognizance of an offence by the  

Magistrate is same as summoning an accused to  

appear?  

(b) Whether the Magistrate, while considering the  

question of summoning an accused, is required to  

assign reasons for the same?

6) In this context, it is relevant to extract Sections 190 and  

204 of the Code of Criminal Procedure, 1973 (hereinafter  

referred to as “the Code”) which read as under:

“190. Cognizance of offences by Magistrates. (1) Subject  to the provisions of this Chapter, any Magistrate of the first  class, and any Magistrate of the second class specially  empowered in this behalf under sub-section (2), may take  cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such  offence ;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence

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has been committed.

(2) The Chief Judicial Magistrate may empower any  Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to  inquire into or try.”

“204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks  fit, a summons, for causing the accused to be brought or to  appear at a certain time before such Magistrate or (if he has  no jurisdiction himself) some other Magistrate having  jurisdiction.

(2) No summons or warrant shall be issued against the  accused under sub-section (1) until a list of the prosecution  witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in  writing, every summons or warrant issued under sub-section  (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued  until the fees are paid and, if such fees are not paid within a  reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the  provisions of section 87.”

7) In S.K. Sinha, Chief Enforcement Officer vs. Videocon  

International Ltd. & Ors., (2008) 2 SCC 492, the expression  

“cognizance”  was explained by this Court as it merely means  

“become aware of” and when used with reference to a court or  

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a Judge, it connotes “to take notice of judicially”. It indicates  

the point when a court or a Magistrate takes judicial notice of  

an offence with a view to initiating proceedings in respect of  

such offence said to have been committed by someone.  It is  

entirely a different thing from initiation of proceedings; rather  

it is the condition precedent to the initiation of proceedings by  

the Magistrate or the Judge.  Cognizance is taken of cases and  

not of persons.

8) Under Section 190 of the Code, it is the application of  

judicial mind to the averments in the complaint that  

constitutes cognizance.  At this stage, the Magistrate has to be  

satisfied whether there is sufficient ground for proceeding and  

not whether there is sufficient ground for conviction.  Whether  

the evidence is adequate for supporting the conviction can be  

determined only at the trial and not at the stage of enquiry.  If  

there is sufficient ground for proceeding then the Magistrate is  

empowered for issuance of process under Section 204 of the  

Code.   

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9) A summon is a process issued by a Court calling upon a  

person to appear before a Magistrate.  It is used for the  

purpose of notifying an individual of his legal obligation to  

appear before the Magistrate as a response to violation of law.  

In other words, the summons will announce to the person to  

whom it is directed that a legal proceeding has been started  

against that person and the date and time on which the  

person must appear in Court.  A person who is summoned is  

legally bound to appear before the Court on the given date and  

time.  Willful disobedience is liable to be punished under  

Section 174 IPC.  It is a ground for contempt of court.

10) Section 204 of the Code does not mandate the Magistrate  

to explicitly state the reasons for issuance of summons.  It  

clearly states that if in the opinion of a Magistrate taking  

cognizance of an offence, there is sufficient ground for  

proceeding, then the summons may be issued.  This section  

mandates the Magistrate to form an opinion as to whether  

there exists a sufficient ground for summons to be issued but  

it is nowhere mentioned in the section that the explicit  

narration of the same is mandatory, meaning thereby that it is  

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not a pre-requisite for deciding the validity of the summons  

issued.

11) Time and again it has been stated by this Court that the  

summoning order under Section 204 of the Code requires no  

explicit reasons to be stated because it is imperative that the  

Magistrate must have taken notice of the accusations and  

applied his mind to the allegations made in the police report  

and the materials filed therewith.

12) In Kanti Bhadra Shah & Anr. vs. State of West  

Bengal (2000) 1 SCC 722, the following passage will be  

apposite in this context:

“12. If there is no legal requirement that the trial court  should write an order showing the reasons for framing a  charge, why should the already burdened trial courts be  further burdened with such an extra work. The time has  reached to adopt all possible measures to expedite the court  procedures and to chalk out measures to avert all  roadblocks causing avoidable delays. If a Magistrate is to  write detailed orders at different stages merely because the  counsel would address arguments at all stages, the snail- paced progress of proceedings in trial courts would further  be slowed down. We are coming across interlocutory orders  of Magistrates and Sessions Judges running into several  pages. We can appreciate if such a detailed order has been  passed for culminating the proceedings before them. But it  is quite unnecessary to write detailed orders at other  stages, such as issuing process, remanding the accused to  custody, framing of charges, passing over to next stages in  the trial………”                                       (emphasis supplied)

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13) In Smt. Nagawwa vs. Veeranna Shivalingappa  

Konjalgi & Ors. (1976) 3 SCC 736, this Court held that it is  

not the province of the Magistrate to enter into a detailed  

discussion on the merits or demerits of the case.  It was  

further held that in deciding whether a process should be  

issued, the Magistrate can take into consideration  

improbabilities appearing on the face of the complaint or in  

the evidence led by the complainant in support of the  

allegations.  The Magistrate has been given an undoubted  

discretion in the matter and the discretion has to be judicially  

exercised by him.  It was further held that once the Magistrate  

has exercised his discretion, it is not for the High Court, or  

even this Court, to substitute its own discretion for that of the  

Magistrate or to examine the case on merits with a view to find  

out whether or not the allegations in the complaint, if proved,  

would ultimately end in conviction of the accused.   

14) In Dy. Chief Controller of Imports & Exports vs.  

Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in  

para 9, held as under:

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“9. In determining the question whether any process is to be  issued or not, what the Magistrate has to be satisfied is  whether there is sufficient ground for proceeding and not  whether there is sufficient ground for conviction. Whether  the evidence is adequate for supporting the conviction, can  be determined only at the trial and not at the stage of  inquiry. At the stage of issuing the process to the accused,  the Magistrate is not required to record reasons. This  question was considered recently in U.P. Pollution Control  Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after  noticing the law laid down in Kanti Bhadra Shah v. State of  W.B. (2000) 1 SCC 722,  it was held as follows: (SCC p. 749,  para 6)

“The legislature has stressed the need to record reasons  in certain situations such as dismissal of a complaint  without issuing process. There is no such legal requirement  imposed on a Magistrate for passing detailed order while  issuing summons. The process issued to accused cannot be  quashed merely on the ground that the Magistrate had not  passed a speaking order.”

15)  In U.P. Pollution Control Board vs. Dr. Bhupendra  

Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in  

paragraph 23, held as under:

“23. It is a settled legal position that at the stage of issuing  process, the Magistrate is mainly concerned with the  allegations made in the complaint or the evidence led in  support of the same and he is only to be prima facie satisfied  whether there are sufficient grounds for proceeding against  the accused.”

16) This being the settled legal position, the order passed by  

the Magistrate could not be faulted with only on the ground  

that the summoning order was not a reasoned order.

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17) It is inherent in Section 251 of the Code that when an  

accused appears before the trial Court pursuant to summons  

issued under Section 204 of the Code in a summons trial case,  

it is the bounden duty of the trial Court to carefully go  

through the allegations made in the charge sheet or complaint  

and consider the evidence to come to a conclusion whether or  

not, commission of any offence is disclosed and if the answer  

is in the affirmative, the Magistrate shall explain the  

substance of the accusation to the accused and ask him  

whether he pleads guilty otherwise, he is bound to discharge  

the accused as per Section 239 of the Code.

18) The conclusion of the High Court that the petition filed  

under Section 482 of the Code is not maintainable cannot be  

accepted in view of various decisions of this Court. (vide Pepsi  

Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors.  

(1998) 5 SCC 749, Dhariwal Tobacco Products Ltd.  & Ors.  

vs. State of Maharashtra & Anr. (2009) 2 SCC 370 and  

M.A.A. Annamalai vs. State of Karnataka & Anr. (2010) 8  

SCC 524).

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19) In the light of the above discussion, we conclude that the  

petition filed before the High Court under Section 482 of the  

Code was maintainable.  However, on merits, the impugned  

order dated 30.07.2010 passed by the High Court of Delhi is  

confirmed, consequently, the appeals fail and the same are  

dismissed.  In view of the dismissal of the appeals, MM/South  

East 02, Patiala House, New Delhi is free to proceed further in  

accordance with law, uninfluenced by any observation made  

in these appeals.   

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (J. CHELAMESWAR)                                   

NEW DELHI; APRIL 4, 2012.

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