DELHI HIGH COURT REITERATES THE PRE-CONDITIONS FOR ISSUING SUMMONS TO A PERSON DURING POLICE INVESTIGATION

A Single Judge Bench of the Hon’ble Delhi High Court comprising of Justice Chandra Dhari Singh has in a recent case of Kulvinder Singh Kohli vs State of NCT of Delhi and Others W.P.(Crl.) 611/2022 passed a Judgment dated 10-06-2022 and reiterated the pre-essential conditions to be satisfied by the police before issuing summons / notices to any person / witness for police investigation.

In this case, the Petitioner, Mr. Kulvinder Singh Kolhli is an Advocate, residing at J 1/162 E, 2nd Floor, Rajouri Garden, New Delhi – 110027. He had received summons under Section 160 of the Code of Criminal Procedure 1973 (CrPC) (Police officer’s power to require attendance of witnesses) on three occasions to appear personally before the Respondent No. 3, Deputy Captain Police, Cyber Crime, Phase-8, District Sahibzada Ajit Singh (S.A.S.) Nagar, Mohali, Punjab on 28-01-2022, 07-03-2022 and 13-03-2022 (Summons) in connection with a Complaint made by one, Rajbikramdeep Singh and his son Munjanpreet Singh alleging the offences committed by the Petitioner and one, Harvansjit Singh under the following provisions of the Indian Penal Code, 1860 (IPC) and the Information Technology Act, 2000 (IT Act):

i) Section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence. language, etc., and doing acts prejudicial to maintenance of harmony),

ii) Section 295A IPC (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs),

iii) Section 501 IPC (Printing or engraving matter known to be defamatory),

iv) Section 504 IPC (Intentional insult with intent to provoke breach of the peace),

v) Section 505 IPC (Statements conducing to public mischief)

vi) Section 506 IPC (Punishment for criminal intimidation) and

vii) Section 67 of the IT Act (Punishment for publishing or transmitting obscene material in electronic form).

The First Summons dated 25-01-2022 stated that the Police is giving a second opportunity to the Petitioner to appear personally before them. However, that was the first correspondence received by the Petitioner from the Police. The Petitioner communicated the same to the Police vide Reply dated 27-01-2022 and informed them that he is almost 60 years of age having chronic heart disease and that his mother is 86 years of age and is suffering from various ailments and has low immunity, etc. Hence, the Petitioner requested the Police to allow him to address the Police through video conferencing. The Petitioner further asked for the copy of the Complaint, but instead of providing the Complaint copy, the Police served a Second Summons dated 25-02-2022, despite the Petitioner’s assurance to cooperate with the Police in the inquiry. Thereafter, the Petitioner sought for the copy of the Complaint through a Right to Information (RTI) Application and obtained the same but without any annexures / supporting documents. Thereafter, the Police again sent a Third Summons dated 09-03-2022 to the Petitioner asking him to be physically present for the investigation, failing which, the case would be decide ex-parte against him.

Aggrieved, the Petitioner filed W.P.(Crl.) 611/2022 before the Hon’ble Delhi High Court seeking quashing of all three Summons issued by the Respondent No. 3-Police.

The High Court made the following observations in this case:

1) That Section 160 CrPC empowers the Police to require the attendance of any person who may be acquainted with the facts and circumstances of the case which such officer is investigating. Section 160 CrPC is reproduced below for easy reference:

160. Police officer’s power to require attendance of witnesses.—

(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.

2) That Section 160 CrPC clearly provides that the Police may issue a summons/notice to a person following the due process of law, which is as follows:

(a) The Police may issue summons at a stage when the officer is making the investigation and a police investigation is deemed to start with the registration of First Information Report (FIR). Hence, summons under Section 160 Cr.P.C. can be issued only after registration of FIR. However, as an exception, a preliminary inquiry into an offence may be carried out by the Police prior to registration of FIR, only with the prior interference of the concerned Magistrate as provided for under Section 157 of the Cr.P.C (Procedure for investigation).

(b) The Police can exercise such power and require attendance of such person only if he/she is within the limits of his own police station or that of an adjoining station.

3) That in this case, the Police had not registered any FIR against the Petitioner at the stage when the Summons were issued and without registration of FIR, an investigation cannot be said to have been initiated. The Respondent No. 3 had in fact summoned the Petitioner at the stage of preliminary inquiry. Hence, the first criteria for issuing Summons under Section 160 Cr.P.C has not been satisfied by the Police in this case.

4) Further, the Respondent No. 3 from Mohali, Punjab had issued Summons to the Petitioner residing in New Delhi, which is clearly beyond the territorial limits of the concerned Police Station. Thus, the second criteria for issuing Summons under Section 160 Cr.P.C. has also not been satisfied by the Police in this case.

Thus, based on the aforesaid observations, the High Court held that the Summons issued by Respondent No. 3 to Petitioner were without jurisdiction and hence, were set aside. As a result, the Petition was allowed.

Harini Daliparthy

Senior Associate

The Indian Lawyer