Case BriefsSupreme Court

Supreme Court: In a matter where the Gujarat High Court had set aside the order passed by a Chief Judicial Magistrate who had taken cognizance of the offences punishable under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC on the basis of the second supplementary charge sheet filed by the police and ordered issuance of process to the accused, the bench of R. Banumathi and Indira Banerjee, JJ held that the High Court ought not to have gone into the merits of the matter when the matter is in nascent stage.

Holding that the High Court overstepped in the said matter, the bench said:

“When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding.”

Stating that while hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity, the bench said:

“materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidences are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused.”

The Court explained that while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused and when the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with.

It was, hence, held that the High Court committed a serious error in going into the merits and  demerits of the case and hence, the impugned order was set aside. [State of Gujarat v. Afroz Mohammed Hasanfatta, 2019 SCC OnLine SC 132, decided on 05.02.2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed by the appellant-wife challenging an ex-parte order passed by a District Judge under Section 25 of the Guardians and Wards Act, 1890.

Vide the order impugned, custody of the minor girl aged 7 years was ordered to be handed over to the respondent-husband. The grievance of the appellant was that there was no proper service of summons on her and still the trial Judge proceeded ex-parte. As per the record of the trial court, summons were issued against the appellant in the present matter relating to the custody of the minor child. The bailiff visited her house. The appellant was out of station, the summons returned unserved. Trial Judge observed that summons were sent to the appellant but it returned with an endorsement as unserved. Therefore, he proceeded ex-parte against the appellant. Aggrieved by the said order, the appellant filed the instant appeal.

The High Court reiterated that the rule of fair trial is that nobody should be condemned unheard. It was observed that the present was not a case of proper service and the trial judge had no discretion to proceed ex-parte only on the basis of a  finding that notice was returned unserved.The envelope that was returned nowhere showed that the summons were refused by the appellant. The Court also referred to Order V CPC which deals with issue and service of summons. The Court was of the view that this was a child custody matter and the trial Judge was expected to be sensitive to the rights of the parties. The Court further observed, even it is assumed that the envelope returned with an endorsement as not claimed, still it does not mean that it is an endorsement of refusal to accept the service. Furthermore, even if there would have been a refusal to accept the service as per Order V Rule 17 CPC, service by affixing the copy of summons + plaint on the outer door or some other conspicuous part of the house. It was held that as there was no service of summons, the ex-parte order is not tenable and deserved to be set aside. [Jayshri Gajendra Mahajan v. Gajendra Pandit Mahajan,2018 SCC OnLine Bom 2233, dated 07-08-2018]

Case BriefsHigh Courts

High Court of Judicature at Madras: A Single Judge Bench comprising of C.T. Selvam J., recently addressed a Criminal Revision Petition filed under Sections 397 and 401 of the Criminal Procedure Code against the order of the Judicial Magistrate.

The facts of the case are that the petitioners had filed a petition seeking permission to leave India and travel to Oman and that they be allowed to appear before the Court of the Judicial Magistrate on receipt of summons. This Court allowed the petition with the condition that the petitioners would have to return to India by 1/12/2018. Aggrieved by the condition placed on them, the petitioners moved the present revision.

The counsel for the petitioners argued that since the petitioners were engaged in business which required of them to travel abroad frequently, the aforementioned condition of returning to India by a certain date would be of great inconvenience to them. The High Court thus held that giving consideration to the situation of the petitioners, it would allow modifications to the order in question in the sense that the petitioners would have to file affidavits conceding to take communications of summons to their e-mail addresses as sufficient service on them.

Accordingly, the High Court allowed the revision petition and modified the order of the Judicial Magistrate and directed for the service of summons on the petitioners to their e-mail addresses as well as the residential address. [Premkumar Thangadurai v. State by The Inspector of Police; Crl.R.C. No.31 of 2018, order dated 11/1/2018]