Can judge issue summons without examining sole witness under oath?

994 votes

Sir, in order to answer your questions the information provided by you is unclear. It's advisable to provide more details to assist you better. However, a simple answer to your question is YES judge has discretion to do so. Feel free to contact me and provide details for an appropriate answer.

Advocate Ishan Parashar LawRato

882 votes

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), like the earlier CrPC, the Magistrate must apply judicial mind before issuing process. As per procedure, a Magistrate is expected to consider the material evidence and statements under oath of witnesses under Section 223 BNSS (earlier 200 CrPC) before issuing summons in a private complaint. Issuing summons solely based on police report or without examining the available witnesses under oath may not be proper. You may challenge such process by filing a revision under Sections 439 or 440 BNSS (corresponding to CrPC 397/401) or seek relief under Section 482 CrPC if there is abuse of process. Avoid making personal assumptions against any authority — remedies are always available through legal channels.

Advocate Sachin Jain LawRato

711 votes

Hi, Fighting with influential people is difficult but not impossible. Yes, summon can definitely be issued without cross examining sole witness. We can definitely guide you and protect you once connected. Regards.

Advocate Vikas Sharma LawRato

562 votes

Under the new Bharatiya Nyaya Sanhita (BNS), while the investigating agency (police) certainly has discretion in how they conduct their investigation and which witnesses they deem crucial for their report, the Magistrate's power to issue summons is distinct and guided by judicial principles, not solely by the police report. Even if the police report relies on a single witness of their choice, the Magistrate is not bound to accept this as the sole basis for issuing summons, especially in a case arising from a private complaint where the complainant has identified multiple witnesses. The BNS, like its predecessor, emphasizes the importance of a fair and thorough judicial process. Before issuing summons to the accused, the Magistrate typically applies their judicial mind to determine if there are sufficient grounds for proceeding. This often involves: * Examining the Complainant and Witnesses (if any) under Oath: In a private complaint, Section 200 of the CrPC (and its equivalent/modified provision in the BNS) mandates the Magistrate to examine the complainant and the witnesses present on oath. This examination is crucial for the Magistrate to assess the veracity and strength of the allegations. * Considering all Material on Record: The Magistrate will consider the private complaint, the statements of the complainant and witnesses examined under oath, and any documents filed. The police report, though it may be on record, is not the sole determinant of whether summons should be issued. * Applying Judicial Discretion: The Magistrate's decision to issue summons is an exercise of judicial discretion based on the prima facie case established. If the Magistrate finds that the examination of only one witness by the police, despite the complainant listing more, appears to be an attempt to steer the investigation or suppress material facts, they can certainly call for the examination of other witnesses listed by the complainant under oath before deciding on summons. Therefore, no, the Magistrate cannot necessarily or automatically issue summons solely based on the police examining only one witness, especially when the complainant has named others. The Magistrate retains the power to examine all necessary witnesses under oath to satisfy themselves that there are sufficient grounds for proceeding against the accused, irrespective of the police's selective examination of witnesses in their report.

Advocate Saurabh Sharma LawRato

567 votes

Usually judge cannot issue summon in a private complaint solely on police reports naming just one witness. The magistrate is duty bound to examine the complainant and that witness on oath before issuing process. Such summon is not tenable under the law. For filing an objection or revision challenging summon (is issued) for non compliance with mandatory procedure, you may contact us. Thanks

Advocate Abhishek Yadav LawRato