[Opinion] Summons to an Accused in a Criminal Case not to be Issued in a Mechanical Manner

Shahezad Kazi, Tripti Sharma & Ridhima Chandani – [2024] 167 taxmann.com 66 (Article)

Obtaining a final decision for a monetary claim can be an exhausting and long drawn-out process in an Indian court. Over the years, therefore, aggrieved parties began exploring the possibility of setting criminal law in motion even in cases of civil wrong. The obvious intent is to exert pressure on the opposite party to settle the claim to avoid the unpleasantness of a criminal prosecution. Private complaints filed in the Magistrate’s court under India’s penal laws came to be commonly used to intimidate the opposite party into a settlement. Recently in the matter of Delhi Race Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another (“Delhi Race Club“), the Supreme Court of India (the “Supreme Court“) has expressed displeasure at private complaints being registered and summons being issued in a mechanical manner.

The decision in Delhi Race Club acknowledges that calling a person to appear in a criminal court as an accused is a matter affecting one’s dignity, self-respect and image in society and should not be used as a weapon of harassment. Summoning an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. A magistrate is not required to act on a complaint simply because such complaint is filed before him. Before summons are issued to any accused, a magistrate is required to carefully scrutinize the evidence placed by the complainant, and if required question the complainant and the witness(es) to find out the truthfulness of the allegations and examine if any offence is prima facie committed.

The judgment in Delhi Race Club succinctly covers the following key issues of law:

• difference between ‘breach of trust’ and ‘criminal breach of trust’,
• difference between ‘cheating’ and ‘criminal breach of trust’,
• vicarious liability of office bearers of a company in criminal matters; and
• maintainability of a petition for quashing of summons.

Difference between ‘breach of trust’ and ‘criminal breach of trust’

The Supreme Court has clarified that unless there is evidence of a manipulating act or fraudulent misappropriation every act of ‘breach of trust’ may not result in a penal offence of ‘criminal breach of trust’. An act of ‘breach of trust’ involves a civil wrong in respect of which an aggrieved person may make a claim for damages before the civil courts. However, breach of trust coupled with intention (mens rea) gives rise to criminal prosecution.

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