conclusion that there is sufficient wrong for proceeding against the accused,
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2328 OF 2022
DEEPAK GABA AND OTHERS ... APPELLANTS
VERSUS
STATE OF UTTAR PRADESH AND ANOTHER ... RESPONDENTS
J U D G M E N T
SANJIV KHANNA, J
21. We are, therefore, of the opinion that the assertions made in the
complaint and the pre-summoning evidence led by respondent no.
2 - complainant fail to establish the conditions and incidence of the
penal liability set out under Sections 405, 420, and 471 of the IPC,
as the allegations pertain to alleged breach of contractual
obligations. Pertinently, this Court, in a number of cases, has
noticed attempts made by parties to invoke jurisdiction of criminal
courts, by filing vexatious criminal complaints by camouflaging
allegations which were ex facie outrageous or pure civil claims.
These attempts are not be entertained and should be dismissed at
the threshold. To avoid prolixity, we would only like to refer to the
judgment of this Court in Thermax Limited and Others v. K.M.
Johny
16
, as it refers to earlier case laws in copious detail. In
Thermax Limited and Others (Supra), it was pointed that the court
16 (2011) 13 SCC 412.
Criminal Appeal No.2328 of 2022 Page 20 of 23
should be watchful of the difference between civil and criminal
wrongs, though there can be situations where the allegations may
constitute both civil and criminal wrongs. The court must cautiously
examine the facts to ascertain whether they only constitute a civil
wrong, as the ingredients of criminal wrong are missing. A
conscious application of the said aspects is required by the
Magistrate, as a summoning order has grave consequences of
setting criminal proceedings in motion. Even though at the stage of
issuing process to the accused the Magistrate is not required to
record detailed reasons, there should be adequate evidence on
record to set the criminal proceedings into motion. The requirement
of Section 204 of the Code is that the Magistrate should carefully
scrutinize the evidence brought on record. He/she may even put
questions to complainant and his/her witnesses when examined
under Section 200 of the Code to elicit answers to find out the truth
about the allegations. Only upon being satisfied that there is
sufficient ground for summoning the accused to stand the trial,
summons should be issued.17 Summoning order is to be passed
when the complainant discloses the offence, and when there is
material that supports and constitutes essential ingredients of the
17 Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC
610; Pepsi Foods Ltd. (Supra); and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12
SCC 420.
Criminal Appeal No.2328 of 2022 Page 21 of 23
offence. It should not be passed lightly or as a matter of course.
When the violation of law alleged is clearly debatable and doubtful,
either on account of paucity and lack of clarity of facts, or on
application of law to the facts, the Magistrate must ensure
clarification of the ambiguities. Summoning without appreciation of
the legal provisions and their application to the facts may result in
an innocent being summoned to stand the prosecution/trial.
Initiation of prosecution and summoning of the accused to stand
trial, apart from monetary loss, sacrifice of time, and effort to
prepare a defence, also causes humiliation and disrepute in the
society. It results in anxiety of uncertain times.
22. While summoning an accused who resides outside the jurisdiction
of court, in terms of the insertion made to Section 202 of the Code
by Act No. 25 of 2005, it is obligatory upon the Magistrate to inquire
into the case himself or direct investigation be made by a police
officer or such other officer for finding out whether or not there is
sufficient ground for proceeding against the accused.18 In the
present case, the said exercise has not been undertaken.
18 Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638; Abhijit Pawar v. Hemant Madhukar Nimalkar,
(2017) 3 SCC 528; and Birla Corporation Limited (Supra).
Criminal Appeal No.2328 of 2022 Page 22 of 23
23. The order sheet of the trial court enclosed with the appeal reveals
that notwithstanding that the summoning order was limited to
unnamed Manager and Chief Manager of JIPL, the Additional Chief
Judicial Magistrate had deemed it appropriate to issue non-bailable
warrant. The non-bailable warrant was not issued in the name of
any person but by designation against the Chief Manager JIPL,
Andheri East, Mumbai. This was also one of the reasons that had
prompted the appellants to the file the petition under Section 482 of
the Code.
24. We must also observe that the High Court, while dismissing the
petition filed under Section 482 of the Code, failed to take due
notice that criminal proceedings should not be allowed to be
initiated when it is manifest that these proceedings have been
initiated with ulterior motive of wreaking vengeance and with a view
to spite the opposite side due to private or personal grudge.
19
Allegations in the complaint and the pre-summoning evidence on
record, when taken on the face value and accepted in entirety, do
not constitute the offence alleged. The inherent powers of the court
can and should be exercised in such circumstances. When the
allegations in the complaint are so absurd or inherently improbable,
19 Birla Corporation Limited (Supra); Mehmood Ul Rehman (Supra); R.P. Kapur v. State of Punjab, AIR
1960 SC 866; and State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335.
Criminal Appeal No.2328 of 2022 Page 23 of 23
on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient wrong for proceeding against the
accused, summons should not be issued.