March 2, 2024 In Uncategorized


A two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Ujjal Bhuyan passed a judgement dated 23.02.2024 in Shiv Jatia V. Gian Chand Malick & Ors. Criminal Appeal No.776 Of 2024, where the Apex Court held that that the Magistrate cannot issue Summoning Orders to the Accused without application of mind and must wait until a report is received from the Police under Section 202 (Postponement of issue of process).


i) In the present case, the Appellant, Managing Director of a Gas Supplier Company, who is Accused No. 2 in the Criminal Case bearing no. 128 of 2004 filed the said case before the Ld. Magistrate, Chandigarh against the Respondent, with whom the Appellant entered into an Agreement regarding the supply of cylinders.

ii) The Appellant and the Respondent Company entered into several agreements during their course of business. However, the Accused Company issued a Letter dated 03.03.2004 to the Respondent No. 2 alleging serious lapses in the customer services rendered by them, which allegedly caused a big dent in the reputation of the Accused Company in the market. Various instances of lapses in services of the Respondent Company were set out in the aforementioned Letter.

iii) Hence, due to the dispute between the Respondent No.2 and the Appellant- Accused No. 2, a Complaint was filed before the Illaqa Magistrate, Chandigarh by the Respondent No.2/Complainant against the Appellant and the Accused Company under Section 200 of the Code of Criminal Procedure 1973 (Cr.P.C) (Examination of Complainant) alleging the commission of offences under Sections 420 of the Indian Penal Code, 1860 (IPC) (Cheating and dishonestly inducing delivery of property), 406 IPC (Punishment for criminal breach of trust), 467 IPC (Forgery of valuable security, will, etc.), 468 IPC (Forgery for purpose of cheating) and 472 IPC (Making or possessing counterfeit seal, etc., with intent to commit forgery punishable under section 467) read with Section 120­B IPC (Punishment of criminal conspiracy) and Section 13 of the Essential Commodities Act, 1955 (Presumption as to orders). The allegation was that, apart from   the   sum   of   74,900/­ the Respondent No. 1/Complainant   paid   a   sum   of   Rs.2,10,000/­   to   the   Accused Company.   It is alleged that the Accused Company supplied only 250   to   300   refills   to   the   Respondent No. 1/Complainant against the assurance of 600 refills. It was also alleged that the Accused Company did not take delivery of the empty cylinders and failed to refund the security deposit.

iv) The Complainant alleged that the Appellant had committed a breach of trust by not refunding the security deposit and not accepting the empty cylinders from Respondent. On the other hand, according to the case made out by the Appellant, a report under Section 202 of the Cr.P.C (Postponement of issue of process) was never submitted by the Police, and without waiting for the said Report, the Ld. Magistrate passed the Summoning Order dated 16.07.2013.

v) The Magistrate had issued summons to the Appellant against the Complaint lodged by the Respondent No.1. The Appellant alleged that that the Magistrate’s Summoning Order was completely illegal in nature. According to the Appellant, a plain reading of the Complaint discovers that there is no allegation against the Appellant about the commission or omission of any acts which constitute any offence against the Appellant. As per the Appellant, a report under Section 202 of Cr.P.C was never submitted by the Police.

vi) The Appellants filed a Petition under Section 482 of the Cr.P.C (Saving of inherent power of High Court) before the High Court of Punjab and Haryana at Chandigarh for quashing the said Complaint and for quashing the Summoning Order dated 16.07.2013 passed on the said Complaint. The High Court, vide the impugned Judgment dated 25.08.2014, dismissed the said Petition providing that there were some disputed questions of fact and therefore, the controversy can be decided only after the evidence is recorded.


I) Whether the Trial Court was justified in issuing the Summoning Orders before the Police Report was filed?

II) Whether the High Court was right in dismissing the Petition of the Appellant?

Decision by Supreme Court

Initially some contentions were raised in the Supreme Court that the Ld. Magistrate’s Order dated 18.12.2022 was correctly passed after the report was received by the Magistrate. However, on recording the statement of Kanwardeep Kaur, IPS, Senior Superintendent of Police, Union Territory of Chandigarh, in the Affidavit filed on 24th October 2023, it was stated that the Police did not file the Report under Section 202 of Cr.P.C till 16.07.2013, when the Summoning Order was already issued by Ld. Magistrate.

The Apex Court was of the view that Magistrate must ought to have waited until the report was received from the Police and that the High Court has not   recorded cogent reasons for not entertaining the prayer for quashing the Complaint. The only reason given by the High Court is that there were disputed questions of fact, and therefore, the controversy can be decided only after evidence is recorded. Moreover, the Supreme Court further restated that the Magistrate cannot issue the summons until there is satisfaction that the material was sufficient to pass the Summoning Order.

Hence, the Bench held that, the entire dispute is of a civil nature arising out of a commercial transaction. Therefore, in their considered view, the Complaint and documents relied upon by the Respondent no.1/Complainant were correct and the Bench held that no case was made in the Complaint or in the evidence of the Respondent No. 1 to proceed against the Appellant- Director of the Accused No. 2 Company.


Thus, the Apex Court allowed the Appeal filed by the Appellant and set aside the Impugned Order of Punjab and Haryana High Court dated 25.08.2014 and held that Courts must understand the consequences of passing Summoning Orders, as the same cannot be passed casually and without applying judicious mind thereto.





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