POLICE SUMMONS – POLICE MAY SUMMON PARTIES DURING PRELIMINARY INQUIRY

This Criminal Original Petition has been filed to call for the records relating to summon dated 23.11.2022, C.No.P1/E3424913- 1903/chiefoffice/2022 issued by the second respondent and quash the same.

In the said circumstances, summons issued by the second respondent is without any justification and against law. In the case of Benjamin Vs. The Superintendent of Police, Sivagangai District and Ors. reported in (2019) 2 LW Crl 628, this Court held that summons under Section 160 Cr.P.C. cannot be issued without registration of FIR under Section 154 Cr.P.C. Therefore this petition.

3.In support of his submissions, the learned counsel for the petitioners
produced the following orders:

(1) Prakash Transports Vs. The Inspector of Police in Crl.O.P.No.7018 of 2002, dated 22.10.2003.
(2) Soundara Rajan Vs. Deputy Superintending Police and Another reported in 2021 SCC Online Mad 7307.
(3) S.Anand Nataraj Vs. State, Rep by the Inspector of Police and Another reported in 2021 SCC Online Mad 14683.
(4) Madhusudhanan Vs. Deputy Superintendent of Police and Another reported in 2021 SCC Online Mad 9564.
(5) V.N.Pachaimuthu Vs. The Superintendent of Police, Villupuram District, Villupuram and Ors. in W.P.No.19361 of 2011 dated 09.03.2012.

7.From the orders produced by the learned counsel for the petitioners, it is seen that this Court had consistently taken a view that summons under Section 160 Cr.P.C. cannot be issued without registration of FIR under Section 154 Cr.P.C. However, Hon’ble Supreme Court in Lalita Kumari vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1 when considering whether the registration of FIR is mandatory under Section 154 Cr.P.C. observed that preliminary enquiry has to be conducted in cases falling under the following categories:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases were there is abnormal delay/laches in initiating criminal
prosecution.
These categories are only illustrative and not exhaustive as to the conditions which may warrant preliminary enquiry.

8.In the case before hand, the dispute between the parties appears to be matrimonial dispute. As held by the Hon’ble Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1, preliminary enquiry is necessary before registration of FIR. Without the appearance of the parties and witnesses, preliminary enquiry cannot be conducted effectively. May be that summons issued under Section 160 Cr.P.C. may not be correct for the reason that the FIR is not registered. Summons has also reference about Section 91 Cr.P.C. Even otherwise, as per the judgment of the Hon’ble Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1, police is entitled to conduct preliminary enquiry and for that purpose, can summon the parties and witnesses.

Also see: https://demonew.section1.in/police-can-issue-summon-u-ss-160-and-90-cr-p-c-only-in-the-course-of-investigation-after-an-fir-is-registered-under-section-154-cr-p-c/

PARTY: 1.Vennila vs. Deputy Superintendent of Police,Perur, Coimbatore – Crl.O.P.No.30147 of 2022 – PRONOUNCED ON : 27.01.2023.

https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1016624

vennila vs. DSP – summoning parties during preliminary enquiry