While taking a clear stand on a key issue, the Delhi High Court in a learned, laudable, landmark and latest judgment titled Anjani Gupta v. The State (NCT of Delhi) & Anr in CRL.M.C. 2120/2018, CRL.M.A. 7553/2018 & CRL.M.A. 10827/2021 that was delivered just recently on March 8, 2022 and cited in 2022 LiveLaw (Del) 198 minced just no words to observe that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal. It must be mentioned here that the single Judge Bench of Justice Chandra Dhari Singh was dealing with a petition that was filed under Section 482 of CrPC against the impugned order dated 17th March, 2018 passed in a revision petition arising out of summoning order dated 20 June, 2015 passed in a case registered under Section 380 of IPC. It must also be mentioned here that the marriage between the petitioner and the son of the respondent no. 2 that was solemnized on 30 January, 1990 was proving good as the couple enjoyed cordial relationship but relations started to deteriorate with time.
To start with, the single Judge Bench of Justice Chandra Dhari Singh who authored this notable judgment first and foremost puts forth in para 1 that, “The instant petition under Section 482 of the Code of Criminal Code, 1973 (hereinafter “Cr.P.C”) has been filed by the Petitioner against the impugned order dated 17th March, 2018 passed by the learned Special Judge (PC ACT) CBI, East District, Karkardooma Courts, New Delhi in Revision Petition No. 30/2018 arising out of Summoning Order dated 20th June, 2015 passed in CC. NO. 901/13 titled as ‘Om Prakash Gupta vs. Anjani Gupta’ registered at Police Station Preet Vihar for offence punishable under Section 380 of the Indian Penal Code, 1860 (hereinafter “IPC”).”
FACTUAL MATRIX
While elaborating on the background, the Bench then envisages in para 2 that, “The background of the case is discussed as under: -(i) Marriage between the Petitioner and the son of the Respondent No. 2, Alok Gupta, was solemnized on 30th January, 1990 according to Hindu rites and rituals and Respondent No. 2 is the father-in-law of the Petitioner.
(ii) The relationship between the Petitioner and her in-laws was cordial in the beginning, however, it started to deteriorate with time. It has been alleged by the Petitioner that her husband used to continuously torture, harass and humiliate her for dowry and other issues since the very beginning of marriage and was maltreated by him and his family members.
(iii) The Petitioner alleges that her husband was having an illicit relationship with his office receptionist, which was supported by his family members, but objected to by the Petitioner. It was alleged that she was subjected to continuous torture, cruelty and inhumane treatment and was thrown out from her matrimonial house on 16th September, 2011.
(iv) Eventually, as the relationship between the Petitioner and her inlaws strained, both the parties filed cases against each other. One of the cases, which has given rise to the instant petition, is the case filed by the Petitioner under the Protection of Women from Domestic Violence Act, 2005, (hereinafter “DV Act”), registered as No. V-275/12. The said matter was heard by the learned Metropolitan Magistrate, Mahila Court, East District, Karkardooma Courts, New Delhi, and after consideration of arguments the learned Metropolitan Magistrate passed the Order dated 1st November, 2013, wherein it was observed that the husband of the Petitioner is 50 percent owner of the co-owned house, bearing no. A-41, Swasthiya Vihar, Delhi- 110092, the Petitioner was residing on the first floor of the said matrimonial home till the day she was dispossessed from the house, that is on 16th September, 2011 and that there was a prima facie case that the husband of the Petitioner was having an illicit affair. The learned Metropolitan Magistrate held that, in view of the above facts, the Petitioner herein was entitled to the right of residence in the first floor of the abovementioned property. It was further directed by the learned Metropolitan Magistrate that the Petitioner was restrained from interfering in the affairs of the Respondents at the ground floor and similarly, the said Respondents were also restrained from interfering in the physical possession or enjoyment at the first floor of the property of the Petitioner. Respondent No. 2 filed a Revision Petition against the aforesaid Order, however, the same was dismissed by the learned Sessions Court vide Order dated 5th December, 2013.
(v) On 4th July, 2015, the Petitioner came to know that a notice of summons was issued by learned Additional Chief Metropolitan Magistrate, East District, Karkardooma Courts, New Delhi, against her vide Order dated 20th June, 2015, in a complaint case filed by Respondent No. 2 titled ‘Om Prakash Gupta vs. Anjani Gupta’, CC No. 901/12 PS Preet Vihar, Delhi, under Section 380 of the IPC for allegedly removing certain letters from the deemed possession of the Respondent No. 2, while he was not present at his house at the aforementioned address.
(vi) Aggrieved by the said Order, the Petitioner filed a Criminal Petition, which was disposed by a coordinate bench of this Court vide Order dated 12th January, 2018, with liberty to file a Revision Petition against the Order of summoning. The Petitioner then preferred a Revision Petition against the Order dated 20th June, 2015 which was also dismissed by the learned Sessions Court on 17th March, 2018.
(vii) In the instant Petition, the Petitioner has impugned the Order dated 17th March, 2018 by way of which the learned Sessions Judge observed that a prima facie ground had been made out to allege that the Petitioner committed theft of the letters in possession of the Respondent No. 2 as well as the Order dated 20th June, 2015, wherein summons were issued to the Petitioner under Section 380 of the IPC.”
On the face of it, the Bench then observes in para 18 that, “Heard learned counsel for the parties and perused the record. I have perused the impugned Order dated 17th March, 2018 as well as Order dated 20th June, 2015, whereby summons were issued against the Petitioner.”
To put things in perspective, the Bench then envisages in para 19 that, “It is settled position of law that while issuing summons to the accused the concerned Court has to be prima facie satisfied of the charges alleged against the accused. Hon'ble Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate (Supra), has observed as under: -“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.””
Furthermore, the Bench then enunciates in para 20 that, “Further, in the matter of Fiona Shrikhande v. State of Maharashtra, AIR 2014 SC 957, it was observed as laid down under:-“11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint.””
Needless to say, the Bench then rightly states in para 21 that, “It can therefore, be reasonably inferred that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal. In the present matter, the Revisional Court as well as the learned Additional Chief Metropolitan Magistrate were to examine whether the very basic tenets and ingredients of provision of theft under the IPC were being met by the Petitioner or not, while prima facie making out a case against her.”
On a pragmatic note, the Bench then while citing the relevant provisions holds in para 23 that, “The keywords used in the provision are “intending to take dishonestly”, which provides that there must be an intention which is dishonest to remove the property from the possession of a person. Dishonestly has been defined under the IPC as under: “24. Dishonestly — Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.
It is clear that the intention must be to cause wrongful gain to one and wrongful loss to another, and in terms of theft, while removing the movable property out of the possession of a person, the person committing theft must have such kind of intention. In the present case, it is a fact that the Petitioner had been living in the premises in question since the day she got married into the family, and it was her matrimonial home. There is a high probability that any letters coming into the home could have been addressed to her. Since, the post box is located at the entrance of the house and not usually on each floor, there is a likelihood of the Petitioner’s letters and mail being delivered in the very post box that was located on the ground floor of the house. Moreover, the post also seldom contains generic material such as newspapers, magazines, testimonials, etc. that are common to the household. Therefore, even if the Petitioner picked up the letters lying on the floor of the part of the house in possession of the Respondent No. 2, the dishonest intention, of causing wrongful gain to herself or any other person and wrongful loss to the Respondent No. 2 or anyone else, was not established at the preliminary stage. There is barely any wrongful loss or gain that could not have been caused merely by picking up certain letters lying on the floor of the house.”
As a corollary, the Bench then points out in para 24 that, “The ingredient of dishonest intention is hence, not found in the actions of the Petitioner. Consequently, a prima facie offence could not have been made out against the Petitioner under Section 380 of the IPC and thereby, the Order dated 20th June, 2015 passed and summons issued to the Petitioner were improper and erroneous to that effect.”
Most significantly, the Bench then holds in para 27 that, “The instant dispute has arisen out of matrimonial discord between two people which has also, led to filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members. It is found that for the sole purpose of harassing the other party such cases are filed by persons with no just cause or reason and substantial ground for allegations. The FIR by the Respondent No. 2 accusing Petitioner of charges of theft seems to be one more such attempt to harass her for making a case out of no substantial instance. Such kind of practices cannot be condoned and are in gross misuse of process of law.”
Going ahead, the Bench then observes in para 28 that, “Keeping in view, the arguments advanced, facts presented, contents of the impugned Order, and observations of the Courts below, this Court does not find any cogent reason to allow the operation of the impugned Order dated 17th March, 2018 passed by learned Special Judge (PC ACT) CBI, East District, Karkardooma Courts, New Delhi in Revision Petition No. 30/2018.”
Adding more to it, the Bench then holds in para 29 that, “Consequently, the summoning Order dated 20th June, 2015 passed by Additional Chief Metropolitan Magistrate, East District, Karkardooma Courts, Delhi and Order dated 17th March, 2018 passed by Special Judge (PC Act) CBI, East District, Karkardooma Courts, Delhi upholding the summoning Order are set aside. Accordingly, the petition is allowed and disposed of.”
In conclusion, the Delhi High Court has not left even an iota of doubt to make it absolutely clear that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal. All the courts must definitely pay heed to what the Delhi High Court has held in this case so clearly. No denying it!Sanjeev Sirohi
