In CRM-M-3334 of 2019 (O&M)-PUNJ HC- Magistrate is not required to pass speaking order at stage of summoning, holds P&H HC while refusing to interfere with Magistrate’s well-founded exercise of discretion in summoning petitioner Justice Sant Parkash [04-04-2022]

Read Order: Pardeep Kumar v. Keshav Sood and Another

Monika Rahar

Chandigarh, April 14, 2022: While dealing with a challenge against the Trial Court order summoning the petitioner to face trial, the Punjab and Haryana High Court has held that in a summoning order a Magistrate is not required to pass a speaking order and at the stage of summoning, the Magistrate is only required to evaluate the material placed before him form a prima facie view and not from the point of view for conviction or acquittal of the accused. 

Pertinently, Justice Sant Parkash highlighted that the Judicial Magistrate has the discretionary power to summon a person to face trial in a private complaint. Hence, the High Court did not find it appropriate to interfere in such exercise of power after the Court did not find any illegality in the lower court order. 

Brief facts leading to the present case are that the property in dispute was originally owned by Satyawati Sood, who bequeathed it to her daughter namely Pushpa (measuring 11 marlas) and rest 05 marlas were given to her grandsons namely Pradeep Kumar Sood (present petitioner) and Rajeev Kumar Sood (both sons of Bimla Sood) via a Will dated October 14, 1982. 

Pushpa sold her share to Bimla Sood vide sale deed in 1989. In 1997, Bimla Sood also executed a Will in favour of her two sons. Bimla Sood had a pre-deceased daughter namely Parveen Lata Sood (mother-in-law of the first respondent). The daughters of Parveen Lata filed a civil in 2015 claiming their 1/3 share in the aforesaid property measuring 11 marlas. The Civil Court directed the petitioner and his brother that they can alienate/transfer the suit property with the prior permission of the Court thereby bringing the proposed vendee/transferee on the record.

Aggrieved, the petitioner filed an appeal which was dismissed. The petitioner along with his brother, after getting mutation sanctioned in their favour (by claiming to be the only legal heirs of Bimla Devi) entered into an agreement to sell in 2015in respect of the proportion inherited by them. 

At this, the first respondent (Keshav Sood) who is the son-in-law of Parveen Lata, filed the impugned complaint under Sections 420, 465, 467 and 120-B of IPC against the petitioner and the second respondent, wherein the trial Court summoned the petitioner to face trial. Aggrieved by such summoning order, the petitioner came up before this Court by way of the instant petition. 

It was the case of the petitioner that the complainant while filing the complaint in question, did not disclose the true facts to the Court below that the petitioner legally inherited the property on the basis of the Wills executed by Smt. Satyawati Sood and Smt. Bimla Devi, as per which, the petitioner and his brother were the absolute owners in possession of the entire property with all rights and interest and the first respondent/complainant (son-in-law of Smt. Parveen Lata) could not claim any right on the same.

On the contrary, the counsel appearing on behalf of the first respondent/complainant vehemently argued that the petitioner concealed material facts from the Court below and he in connivance with the second respondent, got prepared a fake table of inheritance by omitting the legal heirs of Bimla Devi and making a false statement before the revenue authorities and got the mutation sanctioned in his favour. 

After perusing the Lower Court orders as also the rival submissions advanced by the Counsels, the Court opined that there are various disputed questions involved in the present case, which need to be referred but at this stage of summoning, the Magistrate is not required to evaluate the merits of the materials or evidence placed before it. 

Further, the Court opined that the impugned order passed by Trial Court found support in the judgment rendered in Gurdeep Kaur Vs. Balbir Singh and others, 2005(2) RCR (Criminal) P & H 205 [P&H HC], wherein it was held that the trial Magistrate has to be, prima facie, satisfied as to whether there are sufficient grounds for proceeding against the accused named in the complaint or not, and that it is not the duty of the trial Magistrate to enter into detailed discussion on the merits or demerits of the case.

Also, after looking at the law laid down by the Supreme Court, the Court opined that in a summoning order, a Magistrate is not required to pass a speaking order and that at the stage of summoning, the Magistrate is only required to evaluate the material placed before him from a prima facie view and not from the point of view for conviction or acquittal of the accused. 

Pertinently, the Court also highlighted that the Judicial Magistrate has the discretionary power to summon a person to face trial in a private complaint and the High Court did not find it appropriate to interfere in the order passed by Judicial Magistrate. 

Glancing through the impugned order, the Court noted that the Trial Court gave its specific findings from the unrebutted preliminary evidence led by the complainants on record and the supporting documentary record that the accused persons in connivance with each other got the mutation in their favour by stating wrong facts to Assistant Collector II Grade, Moga with the intention to grab the property of said Bimla Devi and by doing so, they committed fraud with the complainant and in view of the said observations, the accused persons were summoned. 

Thus, keeping in view the aforesaid facts, the Court did not find any illegality and infirmity in the order of the CJM, Moga and accordingly, the same was upheld by the High Court.