How to Order Summons by Trial Court

So far as the summoning order passed by the Trial Court is concerned, in deciding whether a process should be issued, the Trial Court can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations.

Summoning order passed by the Trial Court

It is also a settled principle that the Trial Court has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by it. Once the Trial Court has exercised its discretion, it is not for the higher Courts, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.

Case Law Reference

It would be relevant to refer to the decision in Dy. Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors. (2003) 4 SCC 139, wherein the Hon’ble Supreme Court, held as under:

  • In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.
  • Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry.
  • At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.
  • The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons.
  • The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.

In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. (2009) 2 SCC 147, Apex Court, in paragraph 23, held as under:

“It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.”