Sonu Gupta Vs. Deepak Gupta & Ors.
The Code of Criminal Procedure, 1973 - Section 190 , Section 204 , Indian Penal Code,1860 - Section 464 , Section 468 , Section 471
Cognizance of offence - Summoning order - 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 signature - 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 photocopy on which the signature is not in original - 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 photocopy of a document allegedly brought into existence by the accused persons - 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.
The Code of Criminal Procedure, 1973 - Section 190 , Section 204
Cognizance of offence - Summoning order - 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, 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 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.
The Code of Criminal Procedure, 1973 - Section 227 , Section 228
Framing of charge - Discharge - Held that cognizance is taken of the offence and not the offender - Hence 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 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 that the materials are wholly insufficient for the purpose of trial -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 may be considered appropriately on conclusion of trial.
Topic(s)-Cognizance of offence - Summoning order , Framing of charge
Important Decision(s)- 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