While issuing summons, prima facie appreciation of evidence coupled with application of judicial mind must be carried out, says Delhi High Court

Read Order: ANJANI GUPTA v. THE STATE (NCT OF DELHI) & ANR 

Tulip Kanth

New Delhi, March 14, 2022: While showing concern over a case of matrimonial discord which led to filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members, the Delhi High Court has held that there was an apparent error of law while passing the Order of summons against the wife in a complaint case filed by her father-in-law under Section 380 of the IPC, for allegedly removing certain letters from his deemed possession while he was not present at his house.

The Bench of Justice Chandra Dhari Singh affirmed that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal.

The factual background of this case was that the marriage between the petitioner and the son of the second respondent, Alok Gupta, was solemnized on 30th January, 1990 according to Hindu rites and rituals. Slowly, the relationship between the petitioner and her in-laws started to deteriorate with time and it was alleged by the wife that her husband used to continuously torture, harass and humiliate her for dowry and other issues since the very beginning of marriage and was maltreated by him and his family members. It was also alleged that her husband was having an illicit relationship with his office receptionist, which was supported by his family members, but objected to by the petitioner.

Later, the wife filed a case under the Protection of Women from Domestic Violence Act, 2005,and in that matter the Metropolitan Magistrate held that the wife was entitled to the right of residence in the first floor of the matrimonial home without any interference from the respondents.

After these events ,in the year 2015,  the petitioner came to know that a notice of summons was issued by the Additional Chief Metropolitan Magistrate against her by an Order dated 20th June, 2015, in a complaint filed by her father-in-law under Section 380 of the IPC.

Through the petition in question,the petitioner impugned the Order dated 17th March, 2018 by way of which the Sessions Judge observed that a prima facie ground had been made out to allege that the petitioner committed theft of the letters in possession of the second respondent as well as the Order dated 20th June, 2015, wherein summons were issued to the petitioner.

The Bench at the outset referred to the judgment of the Supreme Court in Pepsi Food & Ors vs. Special Judicial Magistrate & Ors, AIR 1998 SC 128 and observed that it is settled position of law that while issuing summons to the accused the concerned Court has to be prima facie satisfied of the charges alleged against the accused.

Next, the Court expounded on the law pertaining to section 380 of the Indian Penal Code by stating that a bare perusal of the provision for the offence of theft suggests that the person committing the offence shall firstly, remove any movable property from the possession of a person, secondly, do so without his consent and thirdly, remove such property with dishonest intention. In the instant case, the Petitioner was alleged to have removed certain letters from the premises in question. To prima facie establish the offence of theft against her, the abovementioned essentials needed to be met.

Without finding any ingredient of dishonest intention of the daughter-in-law, the Court added that as the post box is located at the entrance of the house and not usually on each floor, there is a likelihood of the petitioner’s letters and mail being delivered in the very post box that was located on the ground floor of the house. 

Moreover, the post also seldom contains generic material such as newspapers, magazines, testimonials, etc. that are common to the household. Therefore, even if the petitioner picked up the letters lying on the floor of the part of the house in possession of her father-in-law, the dishonest intention, of causing wrongful gain to herself or any other person and wrongful loss to her father-in-law or anyone else, was not established at the preliminary stage. There was barely any wrongful loss or gain that could not have been caused merely by picking up certain letters lying on the floor of the house, noted the Bench.

Referring to another judgment of the Top Court in Hindustan Petroleum Corporation Ltd. vs Dilbahar Singh, (2014) 9 SCC 78, the Court clarified, “..Powers of Revisional Court are limited to the appreciation of the judgment/ order of the court below to the question whether there is any gross illegality, error apparent on record or error of law. The Revisional Court ought to have appreciated that the Court below did not consider that prima facie an offence of theft was not made out against the Petitioner as the very ingredients of the offence under Section 380 of the IPC were not met. There was an apparent error of law while passing the Order of summons and the Revisional Court wrongly upheld the Order dated 20th June, 2015 vide its Order dated 17th March, 2018”.

Thus, saying that the FIR by the father-in-law accusing her daughter-in-law of charges of theft was an attempt to harass her for making a case out of no substantial instance, the Bench set aside the aforementioned Summoning Order and also, the Order passed by Special Judge (PC Act) CBI by which the summoning Order had been upheld.