Magistrates Must Pass Speaking Orders When Summoning Persons Not Charged By Police: Delhi HC

In a decisive check on judicial discretion, the Delhi High Court has ruled that a Magistrate cannot summon individuals listed in Column 12 of a charge-sheet through a non-speaking order, especially when the investigating agency found no incriminating evidence against them. The Court emphasized that while Magistrates possess the power to disagree with police findings, such a departure demands a clear identification of the material evidence to prevent the fastening of vicarious criminal liability based solely on corporate designations.

Justice Madhu Jain heard the petition filed by a former Non-Executive Director challenging a summoning order in a case involving alleged cheating by a real estate developer. The petitioner sought quashing of the order passed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which had set in motion criminal proceedings under Sections 406, 420, and 120B of the Indian Penal Code, 1860.

Requirement of Speaking Orders for Column 12 Accused

The Court observed that the power of a Magistrate to take cognizance under Section 190 of the Code of Criminal Procedure, 1973 (corresponding to Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is not restricted by the police's opinion. However, the requirement of 'sufficient ground for proceeding' under Section 204 of the Code of Criminal Procedure, 1973 (Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023) remains paramount. The Court noted that the impugned order failed to identify any specific material against the petitioner, who was a Non-Executive Director and had resigned before the alleged grievances arose.

The Court, in its reasoning, observed: "A magistrate is not bound by the opinion of the investigating agency when deciding whether to issue process against any individual or not... But the law at very same time demands, that the concerned Magistrate in such cases or situations pass, a ‘speaking order’ which upon a bare perusal of it discloses sufficient grounds for proceeding against such individuals. Such an order need not be detailed as to its contents, but this requirement of passing a reasoned order which would disclose sufficient reasons for summoning such individuals becomes essential, as the investigating agency... did not find any at the very threshold."

Improper Reliance on Complainant Synopses

Justice Jain highlighted that the Trial Court had substantially reproduced the complainant's synopsis instead of relying on the charge-sheet. The Court stated: "The synopsis could draw the attention of the learned Trial Court to material allegedly overlooked during the investigation but the assertions made therein could not, by themselves, substitute the very material on the basis of which the law requires a Magistrate to decide whether to issue process or not."

The Court has the following directions:

"The impugned order dated 07.02.2025 passed by the learned Chief Judicial Magistrate, South District, Saket Courts, New Delhi, in Criminal Case No. 308/2022, titled ‘State v. Navin M Raheja & Ors.’, is set aside to the limited extent that it directs issuance of process against the petitioner. Accordingly, the matter is remitted to the concerned learned Trial Court for fresh consideration on the question whether sufficient ground exists for issuing process against the petitioner or not."

Background

The dispute originated from a 2014 booking of a residential unit in the 'Raheja Revanta' project. The complainants alleged that despite an MOU providing for cancellation and refund, the company failed to return the amounts due. The petitioner was a Non-Executive Director of the company during the initial transaction but resigned in August 2015, two years before the project construction delays and refund defaults occurred. The Economic Offences Wing (EOW), after investigation, placed the petitioner in Column 12 of the charge-sheet, noting he only received sitting fees and was not involved in day-to-day affairs. However, the Trial Court summoned him based on a synopsis filed by the respondent. Relying on precedents like Sunil Bharti Mittal v. CBI ( "(2015) 4 SCC 609": 2015 CaseBase(SC) 704) and Shiv Jatia v. Gian Chand Malick & Ors. ( "2024 INSC 142": 2024 CaseBase(SC) 878), the High Court set aside the summoning order qua the petitioner and remanded the matter for fresh consideration.

Case Details:
Case No.: CRL.M.C. 2148/2025 & CRL.M.A. 9622/2025
Case Title: ZUBAIR AHMED v. STATE GOVT. OF NCT OF DELHI AND ANR
Appearances:
For the Petitioner(s): Mr. Siddharth Aggarwal, Sr. Adv. along with Ms. Smriti Sinha, Ms. Aleena, Ms. Vismita Diwan, Mr. Japman Singh, Mr. Divyash Sharma, Advs.
For the Respondent(s): Ms. Meenakshi Dahiya, APP with Mr. Aditya Vikram Singh, Adv. Mr. Madhav Sareen, Ms. Raunak Wahi, Ms. Vanshika Jha, Ms. Pradhi Sahni, Mr. Raghvendra Pratap Singh, Advs. for R-2. Insp. Ramkesh, P.S. EOW.

Source: 2026 CaseBase(DEL) 6678