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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 285-287 OF 2015 [Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]

Sonu Gupta        …..Appellant

Versus

Deepak Gupta & Ors.          …..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Leave granted.

2. The parties have been heard in detail and they have also  

filed written submissions.  Appellant is wife of respondent no.1  

and is  complainant in Criminal  Complaint No.1213/2011 before  

Court of Judicial Magistrate, First Class, Raipur.  The respondents  

are accused in this Complaint Case which was filed on 07.12.2010  

for alleged offences under Section 464, 468 and 471 of the Indian  

Penal Code (IPC).

3. The  appellant  and  respondent  no.1  are  undergoing  a  

protracted matrimonial dispute.  It is the case of appellant as well  

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as respondent no.1 that they were married in February 1997.  A  

girl child was born to the appellant in May 1998 and in 2001 the  

appellant  gave informations on various dates to several  police  

authorities regarding alleged torture and harassment inflicted on  

her by respondent nos.1 to 8 for dowry as well as for giving birth  

to a girl child.  It is appellant’s case that in April 2001 itself there  

was  pressure  by  the  common relatives  and  friends  leading  to  

appellant  withdrawing  her  allegations  against  respondent  no.1  

who in turn withdrew Divorce Petition No.496/2000 and the same  

was dismissed as withdrawn by order of Additional District Judge,  

Delhi dated 30th April 2001.  The differences between the spouses  

got settled amicably in April-May 2001.  The appellant gave birth  

to  another  girl  child  in  August  2002  much  to  the  dislike  of  

accused persons.

4. The substance of  the accusation in the instant  complaint  

case  is  that  anticipating  legal  action  by  the  appellant  against  

renewed mental torture and harassment by the respondent no.1  

and his other relations named as accused, as a stratagem and  

outcome of a conspiracy, one of her earlier letters of complaint to  

some police officials which had been withdrawn by the appellant  

in  April-May  2001,  was  changed  and  tampered  as  per  

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convenience and a photocopy of such undated complaint making  

out a weak case against the respondents which was bound to fail,  

was  got  registered  at  the  instance  of  the  accused  persons  

themselves with the help of some police officials as Criminal Case  

(FIR No.73/2002) on 06.10.2002 in the Mahila Thana, Raipur by  

the Town Inspector of this Thana under pressure of accused no.9,  

Additional Director General of Police, PHQ, Raipur.  According to  

the  complaint  petition,  the  appellant  informed  the  concerned  

court that the FIR No.73/2002 was neither filed by her nor signed  

by her and this FIR facilitated her husband and his relations who  

were  accused  to  obtain  anticipatory  bail  not  only  in  FIR  

No.73/2002 but also in the case genuinely filed by the appellant  

against accused nos.1 to 8 under Sections 498A and 406, IPC in  

Women’s  Cell,  Kirti  Nagar,  Delhi  registered  as  Complaint  

No.372/2004 on 15.06.2004.  The appellant was also surprised to  

receive  in  July  2003  a  notice  of  Divorce  Petition  filed  by  

respondent no.1 in a Delhi  court  on 19.5.2003.  The appellant  

approached various authorities and tried to get an investigation  

into  her  allegations  that  FIR  No.73/2002  was  fraudulently  

registered to benefit the accused nos.1 to 8 and the appellant  

had no role in registering the same. Ultimately, even after a CID  

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investigation in favour of appellant’s case, when no action was  

taken against  the  culprits  and no  copy of  the  CID report  was  

made  available  to  the  appellant,  she  filed  a  Writ  Petition  

No.1488/2005 before the High Court of Chhattisgarh at Bilaspur  

seeking the record of investigation report of CID and registration  

of a criminal case against the accused as well as investigation by  

CBI.   In  terms  of  directions  of  the  High  Court  issued  while  

disposing of the writ petition on 24.06.2010, the appellant was  

provided with copy of the CID investigation report and was also  

permitted  to  inspect  the  entire  connected  record.   Thereafter  

appellant  could  find  that  the  Station  House  Officer  of  Mahila  

Thana,  Raipur  as  well  as  accused  no.9,  Additional  Director  

General  of  Police,  PHQ,  Raipur  also  had  played  a  role  in  

fraudulent registration of FIR No.73/2002 and hence she filed the  

instant criminal complaint before the Court of Judicial Magistrate,  

First Class, Raipur on 07.12.2010.

5. The learned Judicial  Magistrate recorded the statement of  

the appellant and also called for record of CID investigation in the  

matter  of  FIR  No.73/2002  for  the  purpose  of  perusal  and  

evaluation.   On  receipt  of  the  record,  the  learned  Judicial  

Magistrate passed a speaking order on 02.05.2011 whereby he  

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issued summons against accused nos.1 to 9 after finding a prima  

facie  case  on  the  basis  of  complaint  petition,  statement  of  

complainant (appellant) as well as records of CID investigation on  

which the complainant had placed reliance.  Accused nos.1 to 8  

preferred one set of criminal revision and accused no.9 preferred  

another criminal revision before the Sessions Court at Raipur.  By  

two separate orders passed on same date, i.e., 30.11.2011, the  

Sessions  Court  upheld  the  summoning  order  in  respect  of  

accused nos.1 to 5 but set it aside in respect of accused nos.6 to  

8  and  accused  no.9.   Against  these  two  orders  the  appellant  

preferred criminal revision petitions whereas accused nos.1 to 5  

also  preferred  a  Criminal  Miscellaneous  Petition  bearing  

No.45/2012 before the High Court.  The High Court, by common  

judgment  and  order  dated  07.09.2012  which  is  under  appeal,  

dismissed both the criminal  revision petitions preferred by the  

appellant  against  grant  of  relief  to  accused  nos.6  to  9  and  

allowed criminal miscellaneous petition of accused nos.1 to 5 by  

setting  aside  the  summoning  order  of  the  Magistrate  and  

directing  the  appellant  to  appear  before  the  Court  of  Judicial  

Magistrate for adducing further evidence, if any, to support her  

allegation in the complaint petition. The High Court thus remitted  

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back the matter with various observations requiring the appellant  

to produce alleged documents which could prove forgery and also  

to send the same to expert for examination of the document and  

signature of the complainant/appellant.

6. Considering  the  stage  at  which  the  criminal  complaint  is  

pending and the nature of proposed order, this Court would not  

like  to  express  any  definite  opinion  on  the  merits  of  the  

allegations made in the complaint petition or upon the defence  

taken by the accused persons before the courts below or in this  

Court lest it prejudices one or the other party in future.

7. Having considered the details  of  allegations  made in  the  

complaint petition, the statement of the complainant on solemn  

affirmation as well  as materials  on which the appellant  placed  

reliance  which  were  called  for  by  the  learned  Magistrate,  the  

learned Magistrate, in our considered opinion, committed no error  

in summoning the accused persons.  At the stage of cognizance  

and summoning the Magistrate is required to apply his judicial  

mind only with a view to take cognizance of the offence, or, in  

other words, to find out whether prima facie case has been made  

out  for  summoning  the  accused  persons.   At  this  stage,  the  

learned  Magistrate  is  not  required  to  consider  the  defence  

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version or materials or arguments nor he is required to evaluate  

the  merits  of  the  materials  or  evidence  of  the  complainant,  

because the Magistrate must not undertake the exercise to find  

out at this stage whether the materials will lead to conviction or  

not.

8. It is also well settled that cognizance is taken of the offence  

and not the offender.  Hence at the stage of framing of charge an  

individual accused may seek discharge if he or she can show that  

the  materials  are  absolutely  insufficient  for  framing  of  charge  

against that particular  accused.  But  such exercise is  required  

only at a later stage, as indicated above and not at the stage of  

taking cognizance and summoning the accused on the basis of  

prima facie case.  Even at the stage of framing of charge, the  

sufficiency of materials for the purpose of conviction is not the  

requirement and a prayer for discharge can be allowed only if the  

court  finds  that  the  materials  are  wholly  insufficient  for  the  

purpose of trial.  It is also a settled proposition of law that even  

when  there  are  materials  raising  strong  suspicion  against  an  

accused,  the  court  will  be  justified  in  rejecting  a  prayer  for  

discharge and in granting an opportunity to the prosecution to  

bring on record the entire evidence in accordance with law so  

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that case of both the sides may be considered appropriately on  

conclusion of trial.

9. Learned senior advocate for the appellant Mr. Aman Lekhi  

has relied upon a catena of judgments such as :-

(i) Bhim Lal Shah vs. Bisa Singh & Ors. [17 CWN 290];

(ii) State of Orissa & Anr. vs. Saroj Kumar Sahoo  [(2005)  13 SCC 540];

(iii) Riyasat Ali vs. State of U.P.  [1992 Crl.L.J. 1217];

(iv) Nupur  Talwar  vs.  Central  Bureau  of  Investigation  &  Anr. [(2012) 11 SCC  465];

(v) Amit Kapoor vs. Ramesh Chander & Anr. [(2012) 9 SCC  460];

(vi) Asmathunnisa  vs.  State  of  Andhra  Pradesh  &  Anr.  [(2011) 11 SCC 259];

(vii) MEDCHL Chemicals & Pharma (P) Ltd. vs. Biological E.  Ltd. & Ors. [(2000) 3 SCC 269];

(viii) State of Uttar Pradesh vs. Paras Nath Singh [(2009) 6  SCC 372];

(ix) B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC 177];

(x) Matajog Dobey vs. H.C. Bhari [AIR 1956 SC 44];

(xi) P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC 704].

These  need  no  discussion  because  settled  propositions  of  law  

reiterated therein have already been noticed earlier.

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10. In  the  present  case,  on  going  through  the  order  of  the  

learned Magistrate, we are satisfied that the same suffers from  

no  illegality.   The  specific  case  of  the  appellant  that  FIR  was  

registered on an undated photocopy of a petition attributed to  

the  appellant  but  not  bearing  her  original  signature  could  not  

have  been  rejected  by  the  learned  Magistrate  at  the  present  

stage especially in view of the report of investigation by the CID  

which was also called for and there being no dispute that the FIR  

No.73/2002 was registered only on the basis of a photocopy on  

which the signature is not in original and hence in our considered  

view  the  Hon’ble  High  Court  grossly  erred  in  exercise  of  its  

jurisdiction by directing the appellant/complainant to lead further  

evidence and produce the original documents to show forgery.  If  

the  FIR  is  admittedly  on  the  basis  of  only  a  photocopy  of  a  

document  allegedly  brought  into  existence  by  the  accused  

persons,  the  High  Court  erred  in  directing  the  appellant  to  

produce the original and get the signatures compared.

11. In our considered view, the High Court fell into error of  

evaluating the merits of the defence case and other submissions  

advanced on behalf of the accused which were not appropriate  

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for consideration at the stage of taking cognizance and issuing  

summons.

12. Learned  advocate  for  the  accused  persons,  Mr.  D.N.  

Goburdhan  has  placed  reliance  upon  judgment  in  the  case  of  

Pepsi Foods Ltd. & Anr. v.  Special  Judicial Magistrate &  

Ors. (1998)  5  SCC  749  to  highlight  that  summoning  of  an  

accused  is  a  serious  matter  and,  therefore,  the  order  of  the  

Magistrate must reflect that he has applied his mind to the facts  

of the case and the relevant law, as highlighted in paragraph 28  

of  the  Report.   In  that  case  emphasis  was  laid  upon  power  

available with the High Court either under Articles 226 and 227 of  

the Constitution or under Section 482 of the Cr.P.C. to quash a  

criminal proceeding even at initial stage to prevent the abuse of  

process of law by the inferior courts.  But this Court cautioned  

that  since  the  powers  conferred  on  the  High  Court  under  

aforesaid  provisions  have  no  limits,  hence  more/due  care  and  

caution is required while invoking these powers.  In paragraph 29  

it was emphasized that the accused can approach the High Court  

“to  have  the  proceeding  quashed  against  him  when  the  

complaint does not make out any case against him”.  The facts in  

the present case are otherwise and required the High Court to  

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exercise  more  caution  in  view  of  clear  allegations  in  the  

complaint petition.  The High Court erred in evaluating the merit  

of  evidence  for  interfering  with  a  summoning  order.   Learned  

counsel  also  placed  reliance  upon  judgments  in  the  case  of  

State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1)  

SCC 335 and also in the case of  Thermax Ltd. & Ors. v.  K.M.  

Johny & Ors. (2011) 13 SCC 412 in support of the proposition  

that  power  to  quash  criminal  prosecution  is  justified  where  a  

criminal proceeding is instituted with malafide or ulterior motives.  

In the case of Bhajan Lal (supra) this Court did indicate in para  

102, seven kinds of  cases where court  may exercise power to  

quash  criminal  prosecution  but  in  respect  of  the  7th category  

relating to malafide, this Court used the expression – “manifestly  

attended with malafide” and further explained in paragraphs 103  

and 104 that the power of  quashing should be exercised very  

sparingly and with circumspection and that too in the rarest of  

rare cases.  Paragraphs 103 and 104 are reproduced hereunder :

“103.We also give a note of caution to the effect that  the power of quashing a criminal proceeding should be  exercised very sparingly and with circumspection and  that too in the rarest of rare cases; that the court will  not be justified in embarking upon an enquiry as to the  reliability  or  genuineness  or  otherwise  of  the  allegations made in the FIR or the complaint and that  

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the extraordinary or inherent powers do not confer an  arbitrary jurisdiction on the court to act according to  its whim or caprice.

104. It may be true, as repeatedly pointed out by Mr.  Parasaran,  that  in  a  given  situation,  false  and  vexatious charges of corruption and venality may be  maliciously  attributed  against  any  person  holding  a  high office and enjoying a respectable status thereby  sullying  his  character,  injuring  his  reputation  and  exposing him to social ridicule with a view to spite him  on  account  of  some  personal  rancour,  predilections  and  past  prejudices  of  the  complainant.   In  such  a  piquant situation, the question is what would be the  remedy that would redress the grievance of the verily  affected party?  The answer would be that the person  who dishonestly makes such false allegations is liable  to be proceeded against under the relevant provisions  of the Indian Penal Code – namely under Section 182  or 211 or 500 besides becoming liable to be sued for  damages.”

The  facts  in  the  case  of  Thermax  Ltd. (supra)  were  quite  

different  and  there  was  a  clear  situation  showing  that  the  

complainant  was  trying  to  circumvent  period  of  limitation  for  

moving the Civil Court, by filing a delayed criminal case.

13. On  behalf  of  accused  persons  reliance  has  also  been  

placed upon judgment in the case of M.N. Ojha & Ors. v. Alok  

Kumar Srivastav & Anr. (2009)  9 SCC 682.   In  that  case a  

complaint  filed  against  the  appellants  who  were  bank officials  

was quashed because the Court found that it was a counter-blast  

to action taken by them in their official capacity for realizing the  

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loan amount due from the complainant.  On facts of that case, it  

was  easy  to  hold  that  the  complaint  was  clearly  an  abuse  of  

judicial  process  and  it  was  also  found  that  averments  and  

allegations  in  complaint  did  not  disclose  commission  of  any  

offence by appellants.   The Magistrate had failed to  apply his  

mind to the case of the appellants and the High Court had erred  

in not even adverting to the basic facts.  The factual situation in  

the present case is quite otherwise.  Reliance was also placed on  

behalf  of  respondents upon judgment in the case of  State of  

Karnataka v.  Muniswamy & Ors. (1977) 2 SCC 699.  In that  

case,  the  accused  persons  pleaded  for  discharge  before  the  

Sessions  Court  which  was  not  accepted  but  the  High  Court  

quashed  the  proceedings  on  the  ground  that  there  was  no  

material on the record on the basis of which any tribunal could  

reasonably come to the conclusion that the accused were in any  

manner connected with the incident leading to the prosecution.  

This Court agreed with the views of the High Court on the basis of  

peculiar facts of that case showing lack of any data or material  

which could create a reasonable likelihood of conviction for any  

offence in connection with attempted murder of the complainant.  

That judgment also is of no help to the respondents herein in the  

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light of allegations made in the complaint, the statement of the  

complainant  on  solemn  affirmation  and  the  CID  Report  of  

investigation on which the complainant placed reliance and which  

was perused by the learned Magistrate.  

14. These appeals are therefore allowed, the judgment and  

order under appeal passed by the High Court is set aside.  We  

also set aside the orders passed by the learned Sessions Court  

dated 30.11.2011 whereby  summoning  order  was  set  aside in  

respect of accused nos.6 to 8 and accused no.9.  In other words,  

the  order  of  summoning  passed  by  learned  Magistrate  dated  

02.05.2011 is restored.  Before parting with the order we make it  

clear that any observations in this order shall not prejudice the  

case  of  either  of  the  parties  before  the  court  below  and  the  

criminal complaint case of the appellant must proceed on its own  

merits strictly in accordance with law.

15. Although we have set aside the order granting relief to  

accused  nos.6  to  9  by  the  Sessions  Court,  in  the  interest  of  

justice, we direct that in the facts of the case accused nos.6 to 9  

shall be granted benefit of bail by the learned Magistrate if they  

appear within 10 weeks and apply for same.  The Magistrate shall  

of course be at liberty to set reasonable conditions for such grant.  

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     …………………………….J.       [ANIL R. DAVE ]

…………………………….J. [KURIAN JOSEPH]

      …………………………....J.                  [SHIVA KIRTI SINGH]

New Delhi. February 11, 2015.

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