In Herald Case, Magistrate’s Summons To Gandhis Legally Sound

The magistrate’s summons to Sonia and Rahul has no obvious infirmities, though the high court order appears muddled.

The Code of Criminal Procedure, 1973, has three simple provisions to deal with a case where a private citizen files a complaint with a magistrate alleging an offence has been committed. The magistrate may issue a summons or warrant to the accused depending on the nature of the offence, and if required, she may permit the accused to be represented by a pleader and dispense with the actual appearance.

Before issuing such summons to the accused, she should be satisfied that there is an offence made out from the first impression of the facts presented before her.

Obviously, at this stage only one side of the story has been presented and the magistrate is fully aware that by asking a person to be summoned, she is not making any finding or arriving at any definite conclusions about the guilt of the accused. This isn’t even a pre-trial stage – it may even be called the pre-pre-trial stage since the magistrate hasn’t even heard the parties on whether a trial is necessary.

An Error of Judgment?

• Approaching the Delhi High Court against summons issued by magistrate was a folly on part of Gandhis; Supreme Court has long held it is not for the high court to contradict the magistrate
  
• Magistrate’s order in National Herald case did not suffer from any obvious infirmities that required it to be set aside by the high court
  
• A straightforward finding on law has been muddled up by the Delhi High Court which may, ironically, give the Supreme Court grounds to set aside its order
  

The Gandhis’ Stand

When Additional Chief Gomati Manocha issued summons to Congress President Sonia Gandhi, party Vice-President Rahul Gandhi and five others in the “National Herald case”, the summoned sought the intervention of the Delhi High Court to set aside the summons contending, among other things, that the complainant in this case, Subramanian Swamy, did not have a “locus standi”, and that in any case, no offence was made out.

It was a strained stand to take before the high court since the Supreme Court has long held that it is not for the high court to gainsay the magistrate on whether to issue such summons or not and as long as the magistrate has applied her mind to the allegations in the complaint, there is no basis to set aside such summons.

No Obvious Infirmities

Only if absolutely nothing in the material presented by the complainants suggest that an offence has been committed and yet the magistrate perversely issues summons can such an order issuing summons be set aside. To this extent, the order of the magistrate in the National Herald case did not suffer from any obvious infirmities that required it to be set aside by the high court.

Appearing before the magistrate’s court on a summons is no admission of guilt, and there is always enough opportunity to rebut the complaint. If the doomed challenge before the high court against the simple order of summons was part of some elaborate legal strategy thought up by lawyers far more eminent and experienced than me, I confess, I cannot see the merit in it.

High Court’s Mangled Judgment

A straightforward finding on law and fact has, however, been muddled up by the Delhi High Court with the needless invocation of irrelevant concepts and convoluted reasoning. This may, ironically, give the Supreme Court grounds to set aside the high court order on the grounds that it may influence the course of the trial.

While the case of the Swamy and the Gandhis, respectively, seem straightforward, the high court’s reasoning seems to be entirely tangential to the case. In a bid to answer the contention on behalf of the Gandhis that Swamy had no standing to file the complaint, the court tied itself up in knots, referring to the Supreme Court’s recent decision in Subramanian Swamy v Dr Manmohan Singh [(2012) 3 SCC 64] which dealt with corruption complaints against public servants and the need to take sanction prior to initiating proceedings.

The alleged offences are completely different in nature here and it is not even Swamy’s case that an offence under the Prevention of Corruption Act has been committed. In fact, by invoking the wrong precedent, the Delhi High Court may have unwittingly opened the door for the Gandhis to challenge the order even further saying that the proper procedure was not followed.

Judicial Grandstanding

The recent unfortunate tendency to grandstand on issues that have no bearing on the case before them such as the Uniform Civil Code or reservations (to use but two recent examples) has reared its head in the National Herald case as well.

Wholly irrelevant statements such as “how a political party of national stature acts is everybody’s concern”, or “In a unique case, like the instant one, expanded meaning to the law has to be given” do disservice to the judicial process implying that the court’s order was influenced more by the parties present before it rather than the merits of the case.

While such observations are not supposed to influence the course of trial before the magistrate (and the high court makes it clear it shouldn’t), it is the rare magistrate who will completely discard such observations of a superior court in a case before her.

What should have been a clear and concise direction to the magistrate to continue with the summons has now been muddled with inchoate reasoning and needless grandstanding. In a high profile case such as this, far from upholding the rule of law and the sanctity of the judicial process, the Delhi High Court may have made a fine mess of things.

(The writer is a Senior Resident Fellow at the Vidhi Centre for Legal Policy. The views expressed here are purely personal)