What care should be taken while issuing the process? To be summoned/ to appear before the Criminal Court as an accused is a serious matter affecting one’s dignity and reputation in society.

Civil Law Criminal Law

What care should be taken while issuing the process?

To be summoned/ to appear before the Criminal Court as an accused is a serious matter affecting one’s dignity and reputation in society.

BIRLA CORPORATION LIMITED

Vs

ADVENTZ INVESTMENTS AND HOLDINGS

Para 31. Under the amended sub-section (1) to Section 202 Cr. P.C it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.

Para 34. 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint.

Para 36. To be summoned / to appear before the Criminal Court as an accused is a serious matter affecting one’s dignity and reputation in society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be the application of mind as to whether the allegations in the complaint constitute essential ingredients of the offense and whether there are sufficient grounds for proceeding against the accused. In Punjab National Bank and Others v. Surendra Prasad Sinha 1993 Supp (1) SCC 499, it was held that the issuance of the process should not be mechanical nor should be made an instrument of oppression or needless harassment.

Para 37. At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused.

Sec. 202 Postponement of issue of the process :

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of a witness on oath:

Provided that if it appears to the Magistrate that the offense complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

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