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The Delhi High Court has held that a magistrate can summon a person whom the police have not sent for trial, but must identify the material supporting that decision and pass a reasoned order. The ruling came in a petition filed by Zubair Ahmed, a former non-executive director of Raheja Developers Ltd.
The Court set aside the summoning order against Ahmed to the limited extent of his case and directed the trial court to reconsider the matter afresh. Justice Madhu Jain clarified that the High Court had not decided whether sufficient material existed to proceed against him.
Background
The dispute arose from a residential property booking in Raheja Developers' “Raheja Revanta” project in Gurugram. In 2014, Rajat Dayal and his wife, Astha Dayal, booked a residential unit for a total consideration of approximately ₹1.94 crore.
A memorandum of understanding executed in January 2015 provided for cancellation and a refund with a guaranteed premium under specified conditions. After construction delays, the allottees sought cancellation and repayment in 2017. Alleging that the promised amounts had not been fully repaid, they approached the police.
An FIR was registered in October 2018 under Sections 406, 420 and 120B of the Indian Penal Code, concerning allegations of criminal breach of trust, cheating and conspiracy.
Ahmed, who had served as a non-executive director from August 2009 to August 2015, was not named in the original police complaint. After investigation, the police filed a chargesheet against other individuals and the company. Ahmed was placed in Column No. 12, with the investigating agency recording that no incriminating evidence had emerged against him.
However, the Chief Judicial Magistrate, Saket Courts, summoned him along with others through an order dated February 7, 2025. Ahmed subsequently approached the High Court challenging the order.
Justice Madhu Jain examined whether the trial court had adequately explained its decision to summon a person whom the police had not sent for trial.
The High Court recognised that a magistrate is not bound by the investigating agency's conclusion and may summon a person even when the police have not recommended prosecution. However, that power must be exercised through an order explaining the basis for proceeding against the individual.
The Court observed:
“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 which is tasked with collecting material which would assist the Court to decide whether to issue process or not, did not find any at the very threshold.”
The Court found that the trial court had relied substantially on allegations in a synopsis submitted by the complainant rather than identifying supporting material from the record. The chargesheet, meanwhile, stated that Ahmed was not involved in the company's day-to-day affairs and that no incriminating evidence had emerged against him.
The High Court further explained:
“Mere reproduction of the allegations followed by a collective conclusion against all persons placed in Column no. 12 does not reflect the independent application of judicial mind as is required by the law discussed hereinabove.”
It clarified that the complainant's synopsis could draw attention to relevant material, but allegations alone could not replace the evidence required to justify issuing summons.
The Delhi High Court set aside the February 7, 2025 summoning order only insofar as it concerned Zubair Ahmed and remitted the matter to the trial court for fresh consideration. The trial court was directed to examine the complete record, including the chargesheet, the complainant's synopsis and any supporting material, and pass a reasoned order.
The Court expressly clarified that it had not determined whether sufficient grounds existed to proceed against Ahmed.
The criminal case itself was not quashed, and proceedings against the other accused remained unaffected.
