Kabindra Narzary Vs Khurshid Alom

Heard Mr. G. Baishya, the learned counsel appearing for the petitioner(s). Also heard Mr. N.K. Murry, the learned counsel appearing for the respondent(s).

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2. Both these applications are filed under Section 482 read with Sections 397 and 401 of the CrPC challenging the orders dated 10.11.2020 and 11.11.2020 passed by the learned Sub-Divisional Judicial Magistrate, Bilasipara in C.R. Case No.129/2020 and in C.R. Case No.130/2020 respectively.

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3. The respondent Khurshid Alom filed those two cases under Sections 138 of the N.I. Act. The court took cognizance of the offence and issued notice to the accused, the present petitioner(s).

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Page No.# 3/9

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4. The order passed in C.R. Case No.129/2020 reads as under:

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“10.11.2020 Complainant is present.

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Heard the complainant on the petition

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Filed u/s 138 N.I. Act.

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Issue Notice to the accused.

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Fixing 12.01.2021 for app.”

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5. The order passed in C.R. Case No.130/2020 reads as under:

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“11.11.2020 Complainant is present.

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Accused is absent. Heard Ld. Counsel.

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Perused the C/R.

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Issue Notice to the accused.

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Fixing 12.01.21 for app.”

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6. Mr. Baishya has submitted that summoning an accused in a criminal case is a serious matter. The order of the Magistrate in summoning an 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 by the complaint and the evidence, both oral and documentary in support thereon. The Magistrate has to record his satisfaction about a prima facie case against the accused.

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7. According to Mr. Baishya, the learned Magistrate mechanically passed those orders without exercising judicial mind. According to the learned counsel, those orders are bad in law and deserves to be quashed.

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8. In support of his case, Mr. Baishya has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Pepsi Foods Ltd. v. Special Judicial Magistrate ,

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Page No.# 4/9

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(1998) 5 SCC 749. Paragraph 28 of the said judgment is quoted as under:

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“ 28. 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 scrutinise 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.”

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9. In order to buttress his point, Mr. Baishya has relied upon a decision in Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd., (2022) 15 SCC 430. Paragraph 8.2 of the said judgment is quoted as under:

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“ 8.2. As observed by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] and even thereafter in a catena of decisions, summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. In para 28 in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , it is observed and held as under : (SCC p. 760)

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“28. 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 scrutinise 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.”

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10. Mr. Baishya has further relied upon J.M. Laboratories & Ors. v. State of Andhra Pradesh & Anr., reported in 2025 SCC OnLine SC 208. Paragraph 8 of the said

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Page No.# 5/9

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judgment is quoted as under:

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“ 8. In the judgment and order of even date in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled “INOX Air Products Limited Now Known as INOX Air Products Private Limited v. The State of Andhra Pradesh”, we have observed thus:

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“ 33. It could be seen from the aforesaid order that except recording the submissions of the complainant, no reasons are recorded for issuing the process against the accused persons.

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In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 (supra):

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“ 28. 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 scrutinise 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.”

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This Court has clearly held that summoning of an accused in a criminal case is a serious matter. It has been held that 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. This Court held that the Magistrate is required to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and as to whether that would be sufficient for proceeding against the accused. It has been held that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning the accused.

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Page No.# 6/9

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The said law would be consistently following by this Court in a catena of judgments including in the cases of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) 12 SCC 420 and Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5 SCC 435.

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Recently, a Bench of this Court to which one of us (Gavai, J.) was a Member, in the case of Lalankumar Singh v. State of Maharashtra 2022 SCC OnLine SC 1383 (supra), has observed thus:

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“ 38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation⁹ , which reads thus:

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“ 51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

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A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

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However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an

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Page No.# 7/9

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opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”

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A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra).

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In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed.”

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11. Per contra, Mr. Murry submits that the learned trial court might have committed a mistake in writing the orders but setting aside the said orders would cause injustice to the respondent(s). Mr. Murry has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590. Paragraph 23 of the said judgment is quoted as under:

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“ Directions

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23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:

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23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved,

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Page No.# 8/9

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immediate follow-up action be taken.

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23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.

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23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.

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23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court.”

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12. Mr. Murry has further relied upon in A.C. Narayanan v. State of Maharashtra , (2014) 11 SCC 790. Paragraph 29 of the said judgment is quoted as under:

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“ 29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the NI Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act.”

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13. I have given my anxious considerations to the submissions made by the learned counsel of both sides.

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Page No.# 9/9

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14. There is no doubt that the learned Magistrate without applying judicial mind, mechanically passed the impugned orders. The learned Magistrate seems to have forgotten that working as a Judicial Magistrate requires exercise of judicial mind. Judicial works are not executive works.

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15. In a complaint under Section 138 of the N.I. Act, there is certain procedure to take cognizance. The complainant has to file an affidavit in support of the complaint before issuance of the process under Section 200 of the Code of Criminal Procedure. The court has to examine the complainant and witnesses to satisfy itself regarding existence of a prima facie case. Those things were not done by the learned Magistrate who passed the impugned orders.

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16. The impugned orders are bad in law and are set aside.

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17. The trial court is directed to pass fresh orders for taking cognizance of the offences. Thereafter, the trial court shall issue processes asking the accused to appear before the court. Now, both sides are present in this case. Therefore, the trial court shall hear both the parties before taking cognizance of the offence against the accused. Both sides shall appear before the trial court on 9^th July, 2025. They shall furnish certified copies of this order to the learned Sub-Divisional Judicial Magistrate, Bilasipara for doing the needful.

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18. Interim order, if there be any, shall stand vacated.

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With the aforesaid directions, both the criminal petitions are disposed of.

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JUDGE

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Kabindra Narzary v. Khurshid Alom

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