9911796707
TMI Blog2024 (8) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically held that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. Hon'ble Supreme Court of India in the case of Pepsi Foods Ltd. [ 1997 (11) TMI 518 - SUPREME COURT] has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course Ld' court below has simply summarized the contents of the complaint, fact that sanction order was passed and the court had jurisdiction to entertain the matter and thereafter without recording any reason or without examining the nature of allegation made in the complaint the evidence regarding truthf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.02.2024 filed by the respondents and entire proceedings of the Criminal Complaint Case, has filed the present application. 3. In brief, the facts of this case are that a search and seizure under Section 132 of the Income Tax Act, 1861 was conducted in the case of the applicant and his wife Indu Srivastava on 19.04.2017. During search, the wife of the applicant was found in the possession of cash amounting to Rs. 10,74,91,000/- (Rupees Ten Crores Seventy Four Lakhs and Ninety One Thousand Only). Thereafter the matter was referred to the Assessing Officer to initiate proceedings against the applicant under the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as PBPT Act). 4. Acting upon the assumption that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Learned counsel for the applicant submits that the impugned summoning order dated 27.02.2024 is perverse and suffers from total non-application of mind. It is unseasoned and cryptic order. It is submitted that the proceedings under PBPT Act, which were initiated against the applicant solely on the basis of seizure of subject cash during income tax search against the wife of the applicant, could not have been initiated against the applicant in view of order dated 15.12.2023 passed by the Interim Board of Settlement under the provisions of Section 245 of the Income tax Act, 1961 as the cash has already been treated as income of the wife of the applicant and not the income of her husband, the applicant before this Court. It is submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Lalankumar Singh (supra) has specifically held in paragraph 38 that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. Paragraph 38 of Lalankumar Singh (supra) is being quoted hereunder:- 38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect. 11. Hon'ble Supreme Court of India in the case of Pepsi Foods Ltd. (supra) has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. Relevant paragraph 28 is reproduced as under:- 28. Summoning of an accused in a criminal case is a ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter. 13. Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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