SONU GUPTAversusDEEPAK GUPTA & ORS.

                                                          ·~-


                   [2015] 1 S.C.R. 1069


                      SONU GUPTA                                 A
                            v.
                 DEEPAK GUPTA & ORS.
          (Criminal Appeal Nos. 285-287 of 2015)
                   FEBRUARY 11, 2015.                            B
         [ANIL R. DAVE, KURIAN JOSEPH AND
               SHIVA KIRTI SINGH, JJ.]

      Code of Criminal Procedure, 1973: s. 190 - Matrimonial
dispute - Complaint of dowry harassment by appellant-wife C
- Subsequently withdrawn and settlement between the couple
- In the instant complaint, allegation of wife that earlier letter
of complaint which was withdrawn by her was tampered and a
photocopy of such undated complaint was got registered by
respondents-husband and in-laws with the help of some police D
officials and an FIR filed at their instance portraying that it was
filed by the appellant - The accusation of the appellant was
that the said FIR was neither filed by her nor signed by her
and it facilitated her husband and his relations to obtain
anticipatory bail in the dowry case filed by her - CID E
investigation in favour of appellant - Summoning orders -
High Court set aside summoning orders and remitted the
matter to the Magistrate requiring the appellant to produce
alleged documents which could prove forgery - Held:
Magistrate committed no error in summoning the accused F
persons - At the stage of cognizance and summoning, the
Magistrate is required to apply his judicial mind only with a
view to take cognizance of the offence, or to find out whether
prima facie case was made out for summoning the accused
persons - At this stage, the Magistrate is not required to G
consider the defence version 'or materials or arguments nor
he is required to evaluate the merits of the materials or
evidence of the appellant, because the Magistrate must not
undertake the exercise to find out at this stage whether the
                             1069                                H
    1070    SUPREME COURT REPORTS              [2015] 1 S.C.R.


A materials would lead to conviction or not - Summoning order
  restored.

        Allowing the appeal, the Court

         HELD: The cognizance is taken of the offence and
B   not the offender. At the stage of framing of charge an
    individual accused may seek discharge if he or she can
    show that the materials are absolutely insufficient for
    framing of charge against that particular accused. But
    such exercise is required only at a later stage and not at
C   the stage of taking cognizance and summoning the
    accused on the basis of prima facie case. Even at the
    stage of framing of charge, the sufficiency of materials for
    the purpose of conviction is not the requirement and a
    prayer for discharge can be allowed only if the court finds
D   that the materials are wholly insufficient for the purpose
    of trial. The order ·of the Magistrate suffers from no
    illegality. The specific case of the appellant that FIR was
    registered on an undated photocopy of a petition
    attributed to the appellant but not bearing her original
E   signature could not have been rejected by the Magistrate
    at the present stage especially in view of the report of
    investigation by the CID which was also called for and
    there being no dispute that the FIR was registered only
    on the basis of a photocopy on which the signature was
F   not in original and, therefore, the High Court grossly erred
    in exercise of its jurisdiction by directing the appellant/
    complainant to lead further evidence and produce the
    original documents to show forgery. The High Court fell
    into error of.,evaluating the merits of the defence case and
G   other submissions advanced on behalf of the accused
    which were not appropriate for consideration at the stage
    of taking cognizance and issuing summons. [Paras 8, 10,
    11] (1076-D-F; 1078-A-C; 1077-G-H]


H
      SONU GUPTA v. DEEPAK GUPTA & ORS.                 1071


     State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp.     A
(1) sec 335: 1990 (3) Suppl. SCR 259 - relied on.

     Thermax Ltd. & Ors. v. K. M. Johny & Ors. (2011) 13 SCC
412: 2011 (14) SCR 154; M.N. Ojha & Ors. v. Alok Kumar
Srivastav & Anr. (2009) 9 SCC 682:2009 (13) SCR 444;             B
State of Kamataka v. Muniswamy & Ors. (1977) 2 SCC 699:
1977 (3) SCR 113 - Distinguished.

     Bhim Lal Shah v. Bisa Singh & Ors. 17 CWN 290; State
of Orissa & Anr. v. Saroj Kumar Sahoo (2005) 13 SCC 540
: 2005 (5) Suppl. SCR 548; Riyasat Ali v. State of U.P. 1992     C
Crl.L.J. 1217; Nupur Ta/war v. Central Bureau of Investigation
& Anr. (2012) 11 SCC 465: 2012 (6) SCR 723; Amit Kapoor
v. Ramesh Chander & Anr. (2012) 9 SCC 460 : 2012 (7)
 SCR 988; Asmathunnisa vs. State of Andhra Pradesh & Anr.
(2011) 11 sec 259 : 2011 (3) SCR 1116; MEDCHL                    D
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. & Ors.
(2000) 3 SCC 269 : 2000 (1) SCR 1169; State of Uttar
Pradesh v. Paras Nath Singh (2009) 6 SCC 372 : 2009 (8)
 SCR 85; B. Saha & Ors. v. M.S. Kochar (1979) 4 SCC 177
: 1980 (1) SCR 111; Matajog Dobey v. H.C. Bhari AIR 1956         E
SC 44; P.K. Pradhan v. State of Sikkim (2001) 6 sec 104 :
2001 (3) SCR 1119; Pepsi Foods Ltd. & Anr. v. Special
Judicial Magistrate & Ors. (1998) 5 SCC 749: 1997 (5) Suppl.
SCR 12 - referred to.
                   Case Law Reference:                           F

    17 CWN 290                     referred to      Para 9
    2005 (5) Suppl. SCR548         referred to      Para 9
    1992 Crl.L.J. 1217             referred to      Para 9       G
    2012 (6) SCR 723               referred to      Para 9
    2012 (7) SCR988                referred to      Para 9
    2011 (3) SCR 1116              referred to      Para 9
                                                                 H
    1072      SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A        2000 (1) SCR 1169                referred to       Para 9
         2009 (8) SCR 85                  referred to       Para 9
         1980 (1) SCR 111                referred to        Para 9
         AIR 1956 SC 44                  referred to        Para 9
B
         2001 (3) SCR 1119               referred to        Para 9
         1997 (5) Suppl. SCR 12          referred to        Para 9
         1990 (3) Suppl. SCR 259         relied on          Para 12
c        2011 (14) SCR 154               Distinguished Para 12
         2009 (13) SCR 444               Distinguished Para 13
         1977 (3) SCR 113                Distinguished Para 13
D       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 285-287 of 2015. ·

      From the Judgment and Order dated 07.09.2012 of the
  High Court of Chhattisgarh at Bilaspur in Criminal Misc. Petition
E No. 45 of 2012, Criminal. Revision Nos. 45, 152 and 153 of
  2012.

       Aman Lekhi, Vivek Sarin, Harish Pandey, Mayank
    Upadhyay, Manish Kumar for the Appellant.

F       D. N. Goburdhan, Rajesh Ranjan, Atul Jha, Sandeep Jha,
    Dharmendra Kumar Sinha, Chandan Ramamurthi for the
    Respondents.

        The Judgment of the Court was delivered by
G       SHIVA KIRTI SINGH, J. 1. Leave granted.

          2. Ttie parties have been heard in detail and they have also
    filed written submissions. Appellant is wife of respondent no.1
    and is complainant in Criminal Complaint No.1213/2011 before
H
       SONU GUPTA v. DEEPAK GUPTA & ORS.                       1073
              [SHIVA KIRTI SINGH, J.]

 Court of Judicial Magistrate, First Class, Raipur. The                 A
 respondents are accused in this Complaint Case which was
 filed on 07 .12.2010 for alleged offences under Section 464, 468
 and 471 of the Indian Penal Code (IPC).

       3. The appellant and respondent no.1 are undergoing a            8
  protracted matrimonial dispute. It is the case of appellant as
  well as respondent no.1 that they were married in February
  1997. A girl child was born to the appellant in May 1998 and
  in 2001 the appellant gave informations on various dates to
  several police authorities regarding alleged torture and              C
  harassment inflicted on her by respondent nos.1 to 8 for dowry
' as well as for giving birth to a girl child. It is appellant's case
  that in April 2001 itself there was pressure by the common
  relatives and friends leading to appellant withdrawing her
  allegations against respondent no.1 who in turn withdrew
  Divorce Petition No.496/2000 and the same was dismissed as            D
  withdrawn by order of Additional District Judge, Delhi dated
  30th April 2001. The differences between the spouses got
  settled amicably in April-May 2001. The appellant gave birth
  to another girl child in August 2002 much to the dislike of
  accused persons.                                                      E

      4. The substance of the accusation in the instant complaint
 case is that anticipating legal action by the appellant against
 renewed mental torture and harassment by the respondent no.1
 and his other relations named as accused, as a stratagem and           F
 outcome of a conspiracy, one of her earlier letters of complaint
 to some police officials which had been withdrawn by the
 appellant in April-May 2001, was changed and tampered as
 per convenience and a photocopy of such undated complaint
 making out a weak case against the respondents which was               G
 bound to fail, was got registered at the instance of the accused
 persons themselves with the help of some police officials as
 Criminal Case (FIR No.73/2002) on 06.10.2002 in the Mahila
 Thana, Raipur by the Town Inspector of this Thana under
 pressure of accused no.9, Additional Director General of               H
    1074      SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   Police, PHO, Raipur. According to the complaint petition, the
    appellant informed the concerned court that the FIR No.73/2002
    was neither filed by her nor signed by her and this FIR facilitated
    her husband and his relations who were accused to obtain
    anticipatory bail not only in FIR No. 73/2002 but also in the case
B   genuinely filed by the appellant against accused nos.1 to 8
    under Sections 498A and 406, IPC in Women's Cell, Kirti
    Nagar, Delhi registered as Complaint No.372/2004 on
    15.06.2004. The appellant was also surprised to receive in July
    2003 a notice of Divorce Petition filed by respondent no.1 in a
c   Delhi court on 19.5.2003. The appellant approached various
    authorities and tried to get an investigation into her allegations
    that FIR No.73/2002 was fraudulently registered to benefit the
    accused nos.1 to 8 and the appellant had no role in registering
    the same. Ultimately, even after a CID investigation in favour
D   of appellant'.s case, when no action was taken against the
    culprits and no copy of the CID report was made available to
    the appellant, she filed a Writ Petition No.1488/2005 before the
    High Court of Chhattisgarh at Bilaspur seeking the record of
    investigation report of CID and registration of a criminal case
    against the accused as well as investigation by CBI. In terms
E   of directions of the High Court issued while disposing of the
    writ petition on 24.06.2010, the appellant was provided with
    copy of the CID investigation report and was also permitted to
    inspect the entire connected record. Thereafter appellant could
    find that the Station House Officer of Mahila Thana, Raipur as
F   well as accused no.9, Additional Director General of Police,
    PHO, Raipur also had played a role in fraudulent registration
    of FIR No. 7312002 and hence she filed the instant criminal
    complaint before the Court of Judicial Magistrate, First Class,
    Raipur on 07.12.2010.
G
       5. The learned Judicial Magistrate recorded the statement
  of the appellant and also called for record of CID investigation
  in the matter of FIR No.73/2002 for the purpose of perusal and
  evaluation. On receipt of the record, the learned Judicial
H Magistrate passed a speaking order on 02.05.2011 whereby
      SONU GUPTA v. DEEPAK GUPTA & ORS.                  1075
             [SHIVA KIRTI SINGH, J.]
he issued summons against accused nos.1 to 9 after finding a      A
prima facie case on the basis of complaint petition, statement
of complainant (appellant) as well as records of CID
investigation on which the complainant had placed reliance.
Accused nos.1 to 8 preferred one set of criminal revision and
accused no.9 preferred another criminal revision before the       B
Sessions Court at Raipur. By two separate orders passed on
same date. i.e., 30.11.2011, the Sessions Court upheld the
summoning order in respect of accused nos.1 to 5 but set it
aside in respect of accused nos.6 to 8 and accused no.9.
Against these two orders the appellant preferred criminal         C
revision petitions whereas accused nos.1 to 5 also preferred
a Criminal Miscellaneous Petition bearing No.45/2012 before
the High Court. The High Court, by common judgment and order
dated 07.09.2012 which is under appeal, dismissed both the
criminal revision petitions preferred by the appellant against
grant of relief to accused nos.6 to 9 and allowed criminal        0
miscellaneous petition of accused nos.1 to 5 by setting aside
the summoning order of the Magistrate and directing the
appellant to appear before the Court of Judicial Magistrate for
adducing further evidence, if any, to support her allegation in
the complaint petition. The High Court thus remitted back the     E
matter with various observations requiring the appellant to
produce alleged documents which could prove forgery and also
to send the same to expert for examination of the document
and signature of the complainant/appellant.
                                                                  F
     6. Considering the stage at which the criminal complaint
is pending and the nature of proposed order, this Court would
not like to express any definite opinion on the merits of the
allegations made in the complaint petition or upon the defence
taken by the accused persons before the courts below or in this   G
Court lest it prejudices one or the other party in future.

    7. Having considered the details of allegations made in
the complaint petition, the statement of the complainant on
solemn affirmation as well as materials on which the appellant
                                                                  H
    1076         SUPREME COURT REPORTS              [2015] 1 S.C.R.


A placed reliance which were called for by the learned Magistrate,
  the learned Magistrate, in our considered opinion, committed
  no error in summoning the accused persons. At the stage of
  cognizance and summoning the Magistrate is required to apply
  his judicial mind only with a view to take cognizance of the
8 offence, or, in other words, to find out whether prima facie case
  has been made out for summoning the accused persons. At
  this stage, the learned Magistrate is not required to consider
  the defence version or materials or arguments nor he is
  required to evaluate the merits of the materials or evidence of
C the complainant, because the Magistrate must not undertake
  the exercise to find out at this stage whether the materials will
  lead to conviction or not.

          8. It is also well settled that cognizance is taken of the
    offence and not the offender. Hence at the stage of framing of
D   charge an individual accused may seek discharge if he or she
    can show that the materials are absolutely insufficient for
    framing of charge against that particular accused. But such
    exercise is required only at a later stage, as indicated above
    and not at the stage of taking cognizance and summoning the
E   accused on the basis of prima facie case. Even at the stage
    of framing of charge, the sufficiency of materials for the purpose
    of conviction is not the requirement and a prayer for discharge
    can be allowed only if the court finds that the materials are
    wholly insufficient for the purpose of trial. It is also a settled
F   proposition of law that even when there are materials raising
    strong suspicion against an accused, the court will be justified
    in rejecting a prayer for discharge and in granting an
    opportunity to the prosecution to bring on record the entire
    evidence in accordance with law so that case of both the sides
G   may be considered appropriately on conclusion of trial.

        9. Learned senior advocate for the appellant Mr. Aman
    Lekhi has relied upon a catena of judgments such as :-

           (i)    Shim Lal Shah vs. Bisa Singh & Ors. [17 CWN
H                 290];
     SONU GUPTA v. DEEP.\K GUPTA & ORS.                     1077
            [SHIVA KIRTI SINGH, J.]

     (ii)     State of Orissa & Anr. vs. Saroj Kumar Sahoo           A
              [(2005) 13 sec  540];

     (iii)    Riyasat Ali vs. State of U.P. [1992 Crl.L.J. 1217];

     (iv)     Nupur Talwar vs. Central Bureau of Investigation &
              Anr. [(2012) 11  sec 465];                             8

      (v)     Amit Kapoor vs. Ramesh Chander & Anr. [(2012)
              9 sec  460];

      (vi)    Asmathunnisa vs. State of Andhra Pradesh & Anr.        c
              [(2011 > 11sec 259];

      (vii)   MEDCHL Chemicals & Pharma (P) Ltd. vs.
              Biological E. Ltd. & Ors. [(2000) 3 SCC 269];

      (viii) State of Uttar Pradesh vs. Paras Nath Singh             D
             [(2009)  s sec 372];

      (ix)    B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC
              177];

      (x)     Matajog. Dobey vs. H.C. Shari [AIR 1956 SC 44];        E

      (xi)    P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC
              704].

     These need no discussion because settled propositions
of law reiterated therein have already been noticed earlier.         F

      10. In the present case, on going through the order of the
learned Magistrate, we are satisfied that the same suffers from
no illegality. The specific case of the appellant that FIR was
registered on an undated photocopy of a petition attributed to       G
the appellant but not bearing her original signature could not
have been rejected by the learned Magistrate at the present
stage especially in view of the report of investigation by the CID
which was also called for and there being no dispute that the
FIR No.73/2002 was registered only on the basis of a                 H
    1078     SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A photocopy on which the signature is not in original and hence
  in our considered view the Hon'ble High Court grossly erred in
  exercise of its jurisdiction by directing the appellant/complainant
  to lead further evidence and produce the original documents
  to show forgery. If the FIR is admittedly on the basis of only a
B photocopy of a document allegedly brought into existence by
  the accused persons, the High Court erred in directing the
  appellant to produce the original and get the signatures
  compared.

C       11. In our considered view, the High Court fell into error of
    evaluating the merits of the defence case and other
    submissions advanced on behalf of the accused which were
    not appropriate for consideration at the stage of taking
    cognizance and issuing summons.

D       12. Learned advocate for the accused persons, Mr. D.N.
  Goburdhan has placed reliance upon judgment in the case of
  Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.
  (1998) 5 sec 749 to highlight that summoning of an accused
  is a serious matter and, therefore, the order of the Magistrate
E must reflect that he has applied his minq to the facts of the case
  and the relevant law, as highlighted in paragraph 28 of the
  Report. In that case emphasis was laid upon power available
  with the High Court either under Articles 226 and 227 of the
  Constitution or under Section 482 of the Cr.P.C. to quash a
F criminal proceeding even at initial stage to prevent the abuse
  of process of law by the inferior courts. But this Court cautioned
  that since the powers conferred on the High Court under
  aforesaid provisions have no limits, hence more/due care and
  caution is required while invoking these powers. In paragraph
G 29 it was emphasized that the accused can approach the High
  Court "to have the proceeding quashed against him when the
  complaint does not make out any case against him". The facts
  in the present case are otherwise and required the High Court
  to exercise more caution in view of clear allegations in the
H complaint petition. The High Court erred in evaluating the merit
     SONU GUPTA v. DEEPAK GUPTA & ORS.                     1079
            [SHIVA KIRTI SINGH, J.]

of evidence for interfering with a summoning order. Learned         A
counsel also placed reliance upon judgments in the case of
State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1)
sec 335 and also in the case of Thermax Ltd. & Ors. v. K.M.
Johny & Ors. (2011) 13 SCC 412 in support of the proposition
that power to quash criminal prosecution is justified where a       B
criminal proceeding is instituted with malafide or ulterior
motives. In the case of Bhajan Lal (supra) this Court did
indicate in para 102, seven kinds of cases where court may
exercise power to quash criminal prosecution but in respect of
the 7th category relating to malafide, this Court used the          c
expression - "manifestly attended with malafide" and further
explained in paragraphs 103 and 104 that the power of
quashing should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
Paragraphs 103 and 104 are reproduced hereunder :
                                                                    D
    "103. We als9 give a note of caution to the effect that the
    power of quashing a criminal proceeding should be
    exercised very sparingly and with circumspection and that
    too in the rarest of rare cases; that the court will not be
    justified in embarking upon an enquiry as to the reliability    E
    or genuineness or otherwise of the allegations made in the
    FIR or the complaint and that the extraordinary or inherent
    powers do not confer an arbitrary jurisdiction on the court
    to act according to its whim or caprice.
                                                                    F
    104. It may be true, as repeatedly pointed out by Mr.
    Parasaran, that in a given situation, false and vexatious
    charges of corruption and venality may be maliciously
    attributed against any person holding a high office and
    enjoying a respectable status thereby sullying his              G
    character, injuring his reputation and exposing him to social
    ridicule with a view to spite him on account of some
    personal rancour, predilections and past prejudices of the
    complainant. In such a piquant situation, the question is
    what would be t~e remedy that would redress the grievance       H
    1080     SUPREME COURT REPORTS                [2015) 1 S.C.R.


A       of the verily affected party? The answer would be that the
        person who dishonestly makes such false allegations is
        liable to be proceeded against under the relevant
        provisions of the Indian Penal Code - namely under
        Section 182 or 211 or 500 besides becoming liable to be
B       sued for damages."

         The facts in the case of Thermax Ltd. (supra) were quite
    different and there was a clear situation showing that the
    complainant was trying to circumvent period of limitation for
    moving the Civil Court, by filing a delayed criminal case.
c
          13. On behalf of accused persons reliance has also been
    placed upon judgment in the case of M.N. Ojha & Ors. v. Alok
    Kumar Srivastav & Anr. (2009) 9 SCC 682. In that case a
    complaint filed against the appellants who were bank officials
D   was quashed because the Court found that it was a counter-
    blast to action taken by them in their official capacity for
    realizing the loan amount due from the complainant. On facts
    of that case, it was easy to hold that the complaint was clearly
    an abuse of judicial process and it was also found that
E   averments and allegations in complaint did not d.isclose
    commission of any offence by appellants. The Magistrate had
    failed to apply his mind to the case of the appellants and the
    High Court had erred in not even adverting to the basic facts.
    The factual situation in the present case is quite otherwise.
F   Reliance was also placed on behalf of respondents upon
    judgment in the case of State of Kamataka v. Muniswamy &
    Ors. (1977) 2 sec 699. In that case, the accused persons
    pleaded for discharge before the Sessions Court which was
    not accepted but the High Court quashed the proceedings on
G   the ground that there was no material on the record on the basis
    of which any tribunal could reasonably come to the conclusion
    that the accused were in any manner connected with the incident
    leading to the prosecution. This Court agreed with the views
    of the High Court on the basis of peculiar facts of that case
    showing lack of any data or material which could create a
H
      SONU GUPTA v. DEEPAK GUPTA & ORS.                      1081
             [SHIVA KIRTI SINGH, J.]
reasonable likelihood of conviction for any offence in connection      A
with attempted murder of the complainant. That judgment also
is of no help to the respondents herein in the light of allegations
made in the complaint, the statement of the complainant on
solemn affirmation and the CID Report of investigation on which
the complainant placed reliance and which was perused by the           B
learned Magistrate.

     14. These appeals are therefore allowed, the judgment and
order under appeal passed by the High Court is set aside. We
also set aside the orders passed by the learned Sessions               C
Court dated 30.11.2011 whereby summoning order was set
aside in respect of accused nos.6 to 8 and accused no.9. In
other words, the order of summoning passed by learned
Magistrate dated 02.05.2011 is restored. Before parting with
the order we make it clear that any observations in this order
shall not prejudice the case of either of the parties before the       D
court below and the criminal complaint case of the appellant
must proceed on its own merits strictly in accordance with law.

      15. Although we have set aside the order granting relief
to accused nos.6 to 9 by the Sessions Court, in the interest of        E
justice, we direct that in the facts of the case accused nos.6 to
9 shall be granted benefit of bail by the learned Magistrate if
they appear within 10 weeks and apply for same. The
Magistrate shall of course be at liberty to set reasonable
conditions for such grant.                                             F

Devika Gujral                                        Appeal allowed,