M/S Thermax Ltd.& Ors vs K.M.Johny & Ors on 27 September, 2011
In Thermax Limited and Others (Supra), it
was pointed that the court should be watchful of the
difference between civil and criminal wrongs, though
there can be situations where the allegations may
constitute both civil and criminal wrongs. The court
must cautiously examine the facts to ascertain
whether they only constitute a civil wrong, as the
ingredients of criminal wrong are missing. A
conscious application of the said aspects is required
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by the Magistrate, as a summoning order has grave
consequences of setting criminal proceedings in
motion. Even though at the stage of issuing process
to the accused the Magistrate is not required to
record detailed reasons, there should be adequate
evidence on record to set the criminal proceedings
into motion. The requirement of Section 204 of the
Code is that the Magistrate should carefully
scrutinize the evidence brought on record. He/she
may even put questions to complainant and his/her
witnesses when examined under Section 200 of the
Code to elicit answers to find out the truth about the
allegations. Only upon being satisfied that there is
sufficient ground for summoning the accused to
stand the trial, summons should be issued.
Summoning order is to be passed when the
complainant discloses the offence, and when there is
material that supports and constitutes essential
ingredients of the offence. It should not be passed
lightly or as a matter of course. When the violation of
law alleged is clearly debatable and doubtful, either
on account of paucity and lack of clarity of facts, or
on application of law to the facts, the Magistrate
must ensure clarification of the ambiguities.
Summoning without appreciation of the legal
provisions and their application to the facts may
result in an innocent being summoned to stand the
prosecution/trial. Initiation of prosecution and
summoning of the accused to stand trial, apart from
monetary loss, sacrifice of time, and effort to prepare
a defence, also causes humiliation and disrepute in
the society. It results in anxiety of uncertain times.