Anirudh Sen vs State (N.C.T. Of Delhi) on 8 November, 2006

[Cites 43, Cited by 22]

Delhi High Court

Anirudh Sen vs State (N.C.T. Of Delhi) on 8 November, 2006

1. This revision petition is directed against the order dated 04.05.2006 whereby summons were directed to be issued by the learned Metropolitan Magistrate, New Delhi in respect of the petitioner Along with another accused.

2. The learned Counsel for the petitioner submitted that the summoning order suffers from various infirmities which require to be corrected in revision. The first infirmity that he points out is this. The charge-sheet had been filed showing the petitioner in Column No. 2 as there was no material available against the petitioner. The order dated 04.05.2006, which is impugned herein, does not disclose any material on the basis of which the learned Metropolitan Magistrate could have disagreed with the charge-sheet. In the absence of such material, the learned Counsel submits that the impugned order would not be sustainable.

3. The second point taken by Mr. Mohit Mathur is that cognizance of the offences under Sections 419/420/467/471/120-B IPC was taken by the learned Metropolitan Magistrate on 20.02.2002. On that date, the learned Metropolitan Magistrate had summoned only those accused shown in Column No. 4 of the charge-sheet. According to the learned Counsel for the petitioner, the learned Metropolitan Magistrate, on that date, had Page 3466 consciously not summoned the present petitioner. He submits that this conscious non-summoning is indicated by the orders dated 01.11.2002 and 16.01.2003 which were passed in the applications for discharge of sureties and bail bonds in respect of the bail granted to the present petitioner. In the order dated 01.11.2002, it is recorded as under:

Indisputably, the accused Anirudh Sen has been kept in Column No. 2 in chargesheet and has not been summoned. In these circumstances, bail bond stands cancelled and the said surety / applicant Subrata Ghosh stands discharged and endorsement made on his documents be cancelled and documents retained be returned to him.

A similar direction was given in the order dated 16.01.2003 whereby the second surety Mr D.D. Kapoor was also discharged and the bail bond of the accused / petitioner was cancelled. The learned Counsel for the petitioner submitted that these two orders read with the order taking cognizance and summoning the other accused who had been placed in Column No. 4 clearly indicate that the learned Metropolitan Magistrate had consciously taken a decision not to summon the present petitioner. He submits that in this light, the impugned order, whereunder the present petitioner has been summoned by a succeeding Metropolitan Magistrate, would amount to a review of the earlier order and the same would, therefore, be liable to be set aside in view of the decision of the Supreme Court in the case of Adalat Prasad v. Roop Lal Jindal and Ors. .

4. The third point raised by the learned Counsel for the petitioner is that the petitioner could not have been summoned after cognizance had been taken and the matter was listed for consideration of charge. He submitted that immediately consequent upon taking cognizance and summoning the accused by virtue of the order dated 20.02.2002, the process of "inquiry" as contemplated under Section 2(g) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC'), had started which would have culminated on the framing of charges and thereafter the trial would have ensued. He submits that he is mindful of the decision in Swil Ltd. v. State of Delhi and Anr. where the court observed that after cognizance is taken under Section 190 CrPC, the accused can be summoned at different stages. However, he submits that the facts of the present case are distinguishable from those before the Supreme Court in Swil Ltd (supra). In particular, he referred to paragraph 7 of the said decision which reads as under:

7. Further, in the present case, there is no question of referring to the provisions of Section 319 CrPC. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Page 3467 Section 2(g) CrPC nor had the trial started. He was exercising his jurisdiction under Section 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190 CrPC that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included in the charge-sheet.

Reading the aforesaid extract, the learned Counsel for the petitioner submitted that in that case, the provisions of Section 319, CrPC were not attracted because they could only be invoked in the course of an inquiry into or trial of an offence. In the case before the Supreme Court, the stage of inquiry had not been reached and, therefore, the provisions of Section 319 CrPC were found not to be applicable. The learned Counsel for the petitioner submits that in the present case, the situation is different. He submits that cognizance had been taken. The accused mentioned in Column No. 4 had been summoned and as indicated by a subsequent order passed on 17.01.2005, the matter had been put up for arguments on charge on 09.09.2005 which got adjourned to 04.05.2006, on which date the impugned order was passed. According to the learned Counsel for the petitioner, the opening sentence of the impugned order, which begins with the words "during submissions on the charge against the accused Bhupinder Singh...", indicates that, on 04.05.2006, the learned Metropolitan Magistrate was considering the arguments on charge. According to him, this would be an "inquiry" as contemplated under Section 2(g) CrPC and, therefore, if the petitioner was to be called, he could be so called only under Section 319 CrPC on the basis of any material/evidence that would come before the court in the course of the inquiry.

5. The learned Counsel for the petitioner then referred to the decision of the Supreme Court in the case of Ratilal Bhanji Mithani v. State of Maharashtra and Ors. AIR 1979 SC 94 and in particular to paragraph 26-A thereof which indicates that the trial in a warrant case starts with the framing of charge, prior to it the proceedings are only an inquiry. Relying upon this passage, the learned Counsel submitted that the stage, therefore, in the present case was of an inquiry.

6. The learned Counsel for the petitioner further relied on the decision of the Supreme Court in the case of State of U.P. v. Lakshmi Brahman and Anr. and in particular on the following portion from paragraph 13 of the said decision:

... Thus, from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code.

Page 3468 Reading the aforesaid extract, the learned Counsel for the petitioner submitted that it would be apparent from the order dated 17.01.2005 that the learned Metropolitan Magistrate was at the stage contemplated under Section 207 CrPC as he was dealing with the scrutiny of the documents prior to the framing of charge. Therefore, according to him, in view of the aforesaid decision, the present case was at the stage of an inquiry contemplated under Section 2(g) of the Code and, therefore, the decision in Swil Ltd (supra) would be distinguishable, implying thereby that the petitioner could only be summoned following the procedure under Section 319 CrPC, which had not been done in the present case and, therefore, the impugned order is liable to be set aside.

7. The learned Counsel for the State submitted that reading the impugned order dated 04.05.2006, it cannot be said that the learned Metropolitan Magistrate did not consider the material available on record and that his order summoning the present petitioner was not based on any material or was an order which had been passed without looking at the merits of the case. He submitted that the contentions of the learned APP were very much recorded in the order and they were to the effect that there were sufficient grounds for proceeding further against the accused shown in Column No. 2 also. It was specifically submitted by the learned APP that the petitioner was negligent in the discharge of his duty and it is only after trial that it can be ascertained as to whether there was any connivance with the accused Bhupinder Singh for the offence alleged or not and, therefore, he should be summoned.

8. The learned Counsel for the state submitted, in the context of the issue on merits of the matter, that the charge is yet to be framed and the petitioner would have ample opportunity to advance arguments on the issue of whether any charges are to be framed against him or not and the court would obviously take into account all his submissions and would, thereafter, pass an order in accordance with law. He further submitted that the taking of cognizance itself is indicative of the fact that an offence has been committed. Now, the only question is as to whether the present petitioner is also involved in the offence or not. And, this question can very well be debated at the time of framing of charges. The petitioner has only been summoned and the question of charge is yet to be decided.

9. As regards the second contention raised by the learned Counsel for the petitioner that the impugned order amounts to a review of the earlier orders passed by the learned Metropolitan Magistrate, the learned Counsel for the State submitted that the orders passed on the application of the discharge of sureties is not an order which specifically indicates that the learned Metropolitan Magistrate had applied his mind to the question of summoning. It was only as a matter of fact that the learned Metropolitan Magistrate considered the question as to whether the petitioner at that point of time had been summoned or not. The record disclosed that the petitioner had, at that point of time, not been summoned and, therefore, the application for discharge was allowed. This does not mean that the learned Metropolitan Magistrate had applied his mind to the facts of the case in the context of considering the argument whether the petitioner should be summoned or Page 3469 not be summoned. Therefore, the subsequent order dated 04.05.2006 cannot be construed as an order reviewing an earlier order.

10. As regards the third contention raised by the learned Counsel for the petitioner, Mr Sharma, who appears on behalf of the State, submitted that this issue is entirely covered by a decision of a learned single Judge of this Court in the case of Jitender Singh @ Motu v. State Govt. of NCT of Delhi 2003 I AD (Cr.) DHC 151. He drew my attention straightway to paragraphs 5, 6, 7, 8, 9, 10 and 11 of the said decision. The issue raised before the learned single Judge in that case, inter alia, was that after taking cognizance under Section 190 CrPC, the Metropolitan Magistrate had proceeded further in the case and, therefore, he could not revert back to the first stage (i.e., of taking cognizance) and that additional accused persons could not be summoned by the learned Magistrate and, if at all, they could be summoned under Section 319 CrPC, which power can be exercised only after the evidence has been recorded. This, according to Mr Sharma, is the specific point raised by the learned Counsel for the petitioner and the same has been repelled by this Court in the case of Jitender Singh (supra). The court held that "Section 190 is of widest amplitude and sufficiently arms the Magistrate to proceed with the trial of those persons whom the police did not care to send for trial naming them as accused in the charge-sheet or who have not been referred to in the charge-sheet if from the evidence and the material placed before him it appears to him that some other persons are also involved in the commission of the offence". The court distinguished the field of operation of Section 319 CrPC by holding that "it would operate in a situation where during the trial and enquiry, it appears to the trial court whether as a Magistrate or a Sessions Judge that some other persons are also involved in the commission of the offence for which he is holding the trial, he could invoke Section 319 CrPC for summoning them to be arrayed as an accused and to stand trial before him in the same case." In Jitender Singh (supra), the court ultimately held in the facts of that case, that the learned Metropolitan Magistrate, on the basis of the FIR and material placed on record, had correctly summoned the petitioners who were not arrayed as accused in the charge-sheet before the charges were framed and, therefore, repelled the arguments raised by the petitioner therein which, according to Mr Sharma, is in identical terms to the arguments advanced by the learned Counsel for the petitioner in the present case.

12. Mr Sharma also relied upon another decision of a learned single Judge of this Court in the case of Itender Singh Chadha and Ors. v. State (NCT of Delhi) wherein the court observed as under in paragraph 5 thereof:

5. In view of the above referred judgment of the Hon'ble Supreme Court of India which is a complete answer to the contention raised on behalf of the petitioners, there remains no doubt about the legal proposition that Sections 319 and 190 of the Code operate in entirely different fields and Section 319 in no manner whatsoever impinges upon the powers of the Magistrate under Section 190 of the Code. The impugned order Page 3470 passed by learned Metropolitan Magistrate was on the basis of the report submitted to him under Section 173 of the Code of Criminal Procedure and the material available on record and as such it cannot be held that the learned Metropolitan Magistrate had no powers to take cognizance of the offence and summon the petitioners as accused, two of whom had been shown in Column No. 2 and regarding remaining two, there was some material available to summon them as accused persons. The impugned order, therefore, does not suffer from any infirmity.

Accordingly, Mr. Sharma submitted that the impugned order does not suffer from any illegality or irregularity and, therefore, no interference is called for.

13. Before engaging in a discussion of the legal issues in the context of the three points urged on behalf of the petitioner, it would be appropriate if the facts are set out. The petitioner was a senior executive of the Bank of Punjab, Connaught Place, at the time of the alleged incident. The FIR was registered at the instance of the Indian Overseas Bank, Connaught Place branch, New Delhi. The allegations in the complaint, according to the officials of the Indian Overseas Bank, are that one Bhupinder Singh who held himself out to be Manjit Singh opened a savings bank non-resident account on 23.1.1998. The said savings bank NRE account was numbered as 1101193 and it was opened with the Bank of Punjab, Connaught Place, New Delhi. A bank draft purportedly issued by the Bank of Montral, Ontario, Canada dated 30.12.1997 for Rs 92,45,234/- was deposited the same day in the said account for high-value clearing. The said the draft was drawn on Indian Overseas Bank, Foreign Exchange Branch, Connaught Place for payment. The said draft was presented by the Bank of Punjab to the Indian Overseas Bank for encashment and the same was encashed by the Indian Overseas Bank and accordingly the account of the Bank of Punjab was credited for the said amount. On 24.1.1998, the said Bhupinder Singh who held himself out to be Manjit Singh withdrew a sum of rupees 75 lakhs in cash. However, when the Indian Overseas Bank sought confirmation from the draft issuing bank, that is, the Bank of Montral, they were informed telephonically that the draft had not been issued by them. Pursuant to this the officials of the Indian Overseas Bank contacted the Bank of Punjab and also the higher authorities at the headquarters at Chandigarh with a request to not allow the withdrawal of the amount credited into the account of Manjit Singh Sethi. The officials of Bank of Punjab informed the Indian Overseas Bank that an amount of a Rs 75 lakhs had already been withdrawn in cash on 24.1.1998 itself and that the account holder would be coming to the bank on 30.1.1998 to withdraw the balance amount of Rs 17 lakhs. Accordingly, with the help of officials of the Bank of Punjab, the petitioner was apprehended outside the building of the Bank of Punjab. On interrogation he revealed his name as Bhupinder Singh of Ludhiana and not Manjit Singh Sethi. He also confessed that he had opened the account impersonating as Manjit Singh Sethi and that it was he who had withdrawn Rs 75 lakhs in cash on 24.1.1998. The petitioner's passport was also taken in possession and it was found to be a forged passport whose original owner was one Manjit Singh Sethi. Accordingly, it was found that the accused Bhupinder Singh Page 3471 impersonated as Manjit Singh Sethi to open an NRE account with the Bank of Punjab.

14. During investigation the present petitioner along with his bank manager Mr D. K. Palta were arrested on 7.06.2001 but later granted bail after about a two weeks by virtue of an order dated 23.06.2001. Thereafter, investigation of the case was carried out and the charge sheet was filed on 17.9.2001. The accused Bhupinder Singh alias Manjit Singh Sethi was sent up for trial and placed in column number four of the charge-sheet. But, the petitioner and the other accused Mr D. K. Palta were not sent up for trial and were placed in column number two on account of absence of any incriminating material. The charge-sheet indicates that the role of the bank officials of both the banks, that is, the Indian Overseas Bank as well as the Bank of Punjab were probed. With regard to the role of the officials of the Bank of Punjab, with which the present petitioner is concerned, the charge-sheet indicates that during investigation it was revealed that the account was opened by the present petitioner, who was the senior executive, on the instructions of Dinesh Kumar Palta, the branch head, in his presence while Bhupinder Singh alias Manjit Singh was sitting in his office. The charge-sheet further reveals that the role of the present petitioner was considered at length and it was established that the present petitioner was merely carrying out the instructions of his senior, the branch head. The chargesheet indicates further that the prosecution had raised certain objections and it was only because of these objections that the present petitioner was arrested on 7.6.2001. However, further investigation revealed that the role of the petitioner was limited only to the opening of the said account. It is recorded in the charge-sheet that investigations carried out have also revealed that the petitioner had no acquaintance with the accused persons and nothing incriminating showing his criminal intent was found. It is categorically stated in the chargesheet that it has also been established that the petitioner was not involved in the conspiracy to cheat the bank. Furthermore the investigation carried out also revealed that the accounts of the petitioner, his wife and other relatives did not reveal anything incriminating showing criminal intent and therefore he was found not to be involved in the conspiracy and was not a beneficiary in any way. The charge-sheet also recorded that the lapse that had occurred in clearing the draft was on the part of the Indian Overseas Bank who had given clearance to the draft and not on the part of the officials of Bank of Punjab. It was categorically observed that the evidence was not sufficient to charge sheet the present petitioner as well as Dinesh Kumar Palta and, as such, their names were mentioned in column number two. The concluding paragraph of the charge-sheet reads as under: --

From the investigation conducted so for, it has been found that during the year 1998 the conspiracy was hatched by accused Bhupinder Singh, Naresh Chetley, Manoj Seth and Rajat Nayyar alias Roger Nayyar to cheat Indian Overseas Bank, Forex branch, Connaught Place and in pursuance of the conspiracy accused Roger alias Rajat Nayyar brought the forged demand draft and passport of Manjit Singh Sethi from Canada and Naresh Chetley and the Manoj Sethi alias Lovely connived with Page 3472 him and accused Bhupinder Singh impersonated as Manjit Singh Sethi got opened an NR(E) account number 11093 in the Bank of Punjab, C. Place in the presence of Dinesh Kumar Palta, branch head of the said bank, and withdrew rupees 75 lakh on 24.1.98 and thus cheated the Indian Overseas Bank. There are enough evidence to charge sheet against Bhupinder Singh alias Manjit Singh, Naresh Chetley, Manoj Sethi alias Lovely, Rajat Nayyar alias Roger Nayyar under Section 419/420/467/468/471/120B IPC. It is therefore, prayed that the witnesses may be summoned while the accused persons may be called through notices and the trial of the case may be initiated.

15. An examination of the charge-sheet, therefore, makes it is a clear that there was no material against the present petitioner to link him with the conspiracy that was hatched by the accused who had been placed in column number four. It was specifically recorded in the charge-sheet that, as there was no evidence against the petitioner, his name was being mentioned in column number two. Therefore, in so far as the investigating agency was concerned the petitioner was not an accused and there was no material against him. When the charge-sheet came up for consideration before the Metropolitan Magistrate on 20.2.2002, he took cognizance of the offence under Sections 419/420/467/471/120B IPC. By virtue of the same order, the Metropolitan Magistrate directed that the accused be summoned and specifically directed that the summons be issued against the accused shown in column number four of the charge-sheet. This happened in February 2002. It is apparent that the Metropolitan Magistrate taking cognizance consciously summoned only the accused shown in column number four and "consciously" did not summon the petitioner who was shown in column number two.

16. As the petitioner had not been summoned, an application was moved under Section 444 CrPC on behalf of his surety Subrata Ghosh for discharge. This application was moved on 24.10.2002 and, as indicated above, by virtue of an order dated 1.11.2002 the application was allowed and the surety Subrata Ghosh stood discharged. In the said order it was specifically recorded that the petitioner had been kept in column number two in the charge-sheet and that he had not been summoned. There is no doubt that this is merely a recognition of the factual position that the petitioner had not been summoned. However, there is nothing on record to show that the Metropolitan Magistrate, when he passed the order on 20.2.2002, had deferred the summoning of the petitioner who had been placed in column number two. On the contrary, it would appear that the Metropolitan Magistrate had taken a conscious decision not to summon the petitioner on 20.2.2002 and, to only summon the accused shown in column number four. Another surety of the petitioner also moved a similar application and the same was allowed on 16.1.2003. Once again, the order recorded that the petitioner had not been summoned nor had he been sent for trial. This is also indicative of the fact that the Metropolitan Magistrate had consciously not issued any summons against the present petitioner and had only issued summons against the accused shown in column number four of the charge-sheet.

Page 3473

17. Coming to the impugned order, it is significant that it was passed on 4.5.2006, that this, four years after the order taking cognizance and issuance of summons against the accused placed in column number four. When the impugned order was passed there was no additional material before the Metropolitan Magistrate to implicate the petitioner in the said offence. And, merely on the basis of submissions made by the learned additional public prosecutor, the successor Metropolitan Magistrate directed the issuance of summons against the persons shown in column number two which included the present petitioner. The submissions that were made by the APP were that there were sufficient grounds for proceeding further against the persons shown in column number two as they were negligent in the discharge of the duty and it is only after the trial that it can be ascertained whether they connived with the accused Bhupinder Singh for the commission of alleged offence or not. However, no material was pointed out to indicate as to whether there was any evidence against the petitioner linking him with the conspiracy. As already indicated above, the material on record placed along with the chargesheet does not in any way implicate the present petitioner. There was no material other than what was before the Metropolitan Magistrate when he passed the impugned order dated 4.5.2006. Therefore, I am of the view that the impugned order has been passed entirely on a wrong footing. The Metropolitan Magistrate has directed the issuance of summons to the petitioner after a period of over four years since taking cognizance without any examination of the material on record. He has done so, merely on the submissions made by the learned APP. This is not a course to be adopted at the time of issuance of summons. The Metropolitan Magistrate has to consider the material on record that has been placed by the investigating agency and if he is not satisfied, he can always direct further investigation. However, if on a consideration of the material on record there is nothing to link the petitioner with the offence of which he has taken cognizance, then summons ought not to be issued. Unfortunately, in the present case, there is no material to indicate the complicity of the present petitioner. In fact, the only role ascribed to the petitioner is that of opening the bank account at the Bank of Punjab under the instructions of the head of the bank. No involvement with the actual accused has been indicated. No pecuniary benefit has been noticed. Clearly, the impugned order has been passed without any consideration of the material on record. Accordingly, the same needs to be set aside.

18. I shall now consider the second contention raised by the learned Counsel for the petitioner that the impugned order amounts to a review of the earlier orders passed by the learned Metropolitan Magistrate. At the outset, I may state that I am in agreement with the views expressed by the learned Counsel for the petitioner. It must be remembered that at the time of taking cognizance the Metropolitan Magistrate had directed the issuance of summons against the accused shown in column number four of the charge sheet and notice to his surety. This was a conscious decision after application of mind. There are two implications of this order. The first being that the Metropolitan Magistrate directed the issuance of summons against the accused shown in column number four of the charge sheet. The second is that the the Metropolitan Magistrate consciously decided not to issue summons against Page 3474 the accused shown in column number two. Therefore, the fallout of such an order is that the Metropolitan Magistrate, after examining the material on record and after taking cognizance of the offence, directed issuance of summons only against the accused shown in column number four, which did not include the present petitioner. By implication, and there is nothing on record to counter such an implication, the Metropolitan Magistrate consciously decided not to issue summons to the petitioner who was shown in column number two. This state of affairs continued right up to the passing of the impugned order which came to be passed more than four years later on 4.5.2006 and that, too, at the stage of considering submissions on charge against the accused Bhupinder Singh. In the meanwhile, two separate discharge applications had been moved by the two sureties of the petitioner and, as indicated above, by two separate orders dated 1.11.2002 and 16.1.2003, those sureties were discharged merely on the ground that the petitioner had been kept in column number two in the charge sheet and had not been summoned. Therefore, till the passing of the order dated 4.5.2006, the position was that the investigation did not reveal anything incriminating insofar as the petitioner was concerned. Even the Metropolitan Magistrate after taking cognizance of the offence did not think it fit at that point of time to issue summons against the petitioner in as much as he was placed in column number two. The clear implication of the circumstances is that the Metropolitan Magistrate had taken a conscious decision not to issue summons to the petitioner. This decision continued right from the date on which the order taking cognizance was passed up to the date on which the impugned order was passed, that is, for a period of almost 4 1/2 years. Clearly, therefore, the impugned order cannot but be regarded as a review of the earlier orders passed by the Metropolitan Magistrate. It is true that there is no explicit statement contained in the order dated 21.2.2002 that the Metropolitan Magistrate was not issuing summons against the petitioner in as much as he did not regard him as an accused, but by implication it is abundantly clear that the Metropolitan Magistrate consciously did not issue summons against the petitioner. It is also not a case in which would be covered by the ratio of the decision in SWIL Ltd (supra), in as much as this is not a case where the Metropolitan Magistrate, after taking cognizance, was contemplating the issuance of process/summons against the accused on different dates and different stages. The facts in the present case reveal that, after taking cognizance, the Metropolitan Magistrate took a conscious decision to issue summons only against the accused shown in column number four of the charge-sheet and not against the persons shown in column number two. Several dates and, in fact, four years passed without any change in this position. Therefore, the present case is not one where it could be said that the Magistrate, after having issued summons against some of the accused, was contemplating the issuance of summons against others on the next date or in the near future. This case is entirely different from that to which the ratio in SWIL Ltd (supra) would apply.

19. From the discussion so far it appears that a decision was taken by the Metropolitan Magistrate not to issue summons insofar as the petitioner is concerned. This decision has been reversed by virtue of the impugned order. It would definitely, in my opinion, amount to a review of the earlier order. Page 3475 The ratio in Adalat Prasad's case (supra) would clearly apply and the impugned order would be bad because the Magistrate did not have the power of review. Although the position in Adalat Prasad's case (supra) was the other way round, that is, that a summoning order was recalled subsequently, I find that it would not make the slightest difference and the ratio would clearly apply in the fact situation obtaining in the present case. What has happened here is that, initially, the magistrate decided not to summon and subsequently after an interval of four and a half years, on the basis of the same material, decided to summon the petitioner. Although the non-summoning precedes the summoning order in the present case and is just the reverse of the sequence of events in the case before the Supreme Court in Adalat Prasad (supra), the ratio is that the Magistrate has no power to review. That being the case, the impugned order would be bad, in as much as it would amount to a review of an earlier order by the Magistrate when he did not possess any such power under the criminal procedure code.

20. The third contention of the learned Counsel for the petitioner is that summons could not have been issued to the petitioner at the stage of consideration of charge against the accused Bhupinder Singh. It is the contention of the petitioner that the stage of taking cognizance and issuing summons was over. The documents that were required to be supplied under Section 207 CrPC had also been supplied to accused Bhupinder Singh. According to the learned Counsel for the petitioner, the stage thereafter was an "inquiry" as contemplated under Section 2(g) CrPC. That being the case, it was contended, the petitioner could only be called under Section 319 CrPC and that too on the basis of evidence that would come before the court in the course of the inquiry. He submits that clearly the provisions of Section 319 CrPC were not invoked. Nor was there any evidence which had come up in the course of the inquiry. Accordingly, he submitted that the impugned order was bad on this ground also. In response, as noted above, the learned Counsel for the state submitted that the decision of a learned single judge of this Court in the case of Jitender Singh (supra) was a complete answer to the contention raised by the learned Counsel for the petitioner. It would, therefore, be necessary to examine the decision in Jitender Singh (supra) in some detail. In that case, a charge sheet had been filed and the magistrate had taken cognizance of the offences under Section 394 and 506 IPC and issued summons to one Gurvinderpal Singh. Thereafter, the case was adjourned for hearing on the question of charge and the magistrate considered the case and at that stage passed an order indicating that the investigating officer had not fairly investigated the case and directed that the other accused named in the complaint but who had not been sent up for trial should also be summoned as they were equally involved in the commission of the offence. Those persons, who were not sent up for trial along with Gurvinderpal Singh but were subsequently summoned by the aforesaid order, were aggrieved and they approached the High Court by filing a petition under Section 482 CrPC for setting aside of the said order. In the context of these facts, it was Page 3476 argued that the magistrate after having taken cognizance had no power and jurisdiction to take cognizance again and summon these persons to face trial. It was also argued that, after taking cognizance under Section 190 CrPC, the magistrate had proceeded further in the case and, therefore, the magistrate could not revert back to the first stage, that is, of taking cognizance and that the additional accused persons could be summoned by the magistrate only under Section 319 CrPC which power could be exercised only after evidence had been recorded. This argument is virtually the same as is being canvassed by the learned Counsel for the petitioner in the present case.

21. The learned single judge who decided the case of Jitender Singh (supra) explained the difference between the provisions of Sections 190 and 319 CrPC. It is a well settled proposition that cognizance is taken of the offence and not of the offender. The learned single judge observed that the magistrate has power and jurisdiction to take cognizance of the offence under Section 190 CrPC against another person who has not been sent by the police as an accused person if from the evidence collected by the police or the material or information placed before him it appears to the magistrate, prima facie, that an offence has been committed by such person. There is no quarrel with this proposition. Nor is there any quarrel with the observation that the power and jurisdiction of the magistrate is such that he is not bound by what has been disclosed or stated in the charge-sheet alone. Section 190 is of the widest amplitude and sufficiently arms the magistrate to proceed with the trial of those persons whom the police did not care to send for trial naming them as accused in the charge-sheet or who have not been referred to in the charge-sheet if, from the evidence and the material place before him, it appears to him that some other persons are also involved in the commission of the offence. There is no dispute with this proposition either. What is relevant is, at what stage can these powers of summoning be exercised under Section 190 CrPC. It is also clear that Section 319 CrPC applies to a situation where, if, during the trial or inquiry, it appears to the trial court, whether it is a magistrate's court or a sessions court, that some other persons are involved in the commission of the offence for which the trial is or inquiry is being held, then the said persons can be summoned to be arrayed as accused to stand trial in the same case. The question that arises is -- has the stage contemplated under Section 190 CrPC been crossed in the facts of the present case or not? It is clear that the two provisions, Section 190 CrPC and Section 319 CrPC apply to different situations. Once an inquiry or a trial commences, Section 190 CrPC would have no application. On the other hand before an inquiry or a trial ensues, the provisions of Section 190 CrPC would have full amplitude. It appears that in Jitender Singh (supra) a concession was made by the counsel for the petitioner that the stage at which the learned magistrate had summoned the petitioner to be arrayed as an accused and face trial was not one where the Section 319 could have been invoked. This is observed in paragraph 9 of the said decision as under: --

Counsel for the petitioner has fairly conceded that the stage at which the learned magistrate has summoned the petitioner to be arrayed as an accused and face trial Section 319 could not have been invoked. No quarrel has been based on this point by any of the parties. This leaves Page 3477 for decision a critical question whether the learned magistrate had power to summon the petitioner to be arrayed as an accused and face trial along with Gurvinderpal Singh in this case.

It, therefore, appears that the crucial question which arises for consideration in the present case was not at all considered or debated upon in Jitender Singh (supra). There is no dispute with the proposition that at the time of taking cognizance or shortly thereafter persons placed in column number two of the charge-sheet can be summoned on different dates. This has been settled by the Supreme Court in SWIL Ltd (supra). There is also no dispute with the proposition that even those persons who have not been named in the chargesheet as accused could be summoned by the magistrate after taking cognizance of the offence. But these questions do not arise in the present case. What arises in the present case is: whether the magistrate could have issued summons in respect of the petitioner at the stage of considering the question of framing charges against the accused Bhupinder Singh? Therefore, I am of the view that the decision in Jitender Singh (supra) does not satisfactorily answer or cover the issue raised in the present case.

22. I shall now consider the decision of another learned single judge of this Court in the case of Itender Singh Chadha (supra). In that case, the learned single judge, after referring to the Supreme Court decision in SWIL Ltd (supra), observed as under: --

In view of the above referred judgment of the Hon'ble Supreme Court of India which is a complete answer to the contention raised on behalf of the petitioners, there remains no doubt about the legal opposition that Sections 319 and 190 of the code operate in entirely different fields and Section 319 in no manner whatsoever impinges upon the powers of the magistrate under Section 190 of the code. The impugned order passed by the learned Metropolitan Magistrate was on the basis of the report submitted to him under Section 173 of the code of criminal procedure and the material available on record and as such it cannot be held that the learned Metropolitan Magistrate has no powers to take cognizance of the offence and summon the petitioners as accused, two of home had been shown in column number two and regarding remaining two, and there was some material available to summon them as accused persons. The impugned order, therefore, does not suffer from any infirmity.

The question that was raised in Itender Singh Chadha (supra) was that on the one hand, it was argued on behalf of the petitioners therein that the Metropolitan Magistrate had acted in violation of the provisions of Section 319 of the Code by taking cognizance against the accused petitioners without recording any evidence whatsoever. On the other hand, the learned Counsel for the State had contended that the order impugned in that case was passed by the Metropolitan Magistrate under Section 190 of the Code and, therefore, there was no violation of the provisions of Section 319 of the Code. The above extracted observations of the learned single judge have clearly proceeded on the foundation of the distinction made between the ambit and sweep of the Page 3478 provisions of Section 190 and 319 of the Code in the Supreme Court decision in SWIL Ltd (supra). As explained above, there is no quarrel with this preposition that the ambit and sweep of the said two provisions are entirely different. What is necessary for the purposes of the present case is to find out as to whether the provisions of Section 190 of the Code could be invoked at the stage of considering the question of framing of charges against the accused Bhupinder Singh. The answer to this question cannot be found in either the case of Jitender Singh (supra) or that of Itender Singh (supra), which have not addressed this question. The latter case was entirely on the question as to whether the Magistrate had the power to summon the accused petitioners therein under Section 190 of the Code or not. The learned single judge, relying on the decision of SWIL Ltd (supra), held that the Metropolitan Magistrate had such a power. But, this in no way, answers the question that needs to be examined in the present case.

23. In Raghubans Dubey v. State of Bihar , the Supreme Court held that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders. The court further held that once the Magistrate takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The Supreme Court observed:

The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.

24. In State of U.P. v. Lakshmi Brahman , the Supreme Court observed in paragraph 4 of the said decision that Section 2(g) of the Code defines inquiry to mean every inquiry, other than a trial, conducted under the Code by a Magistrate or Court. The Supreme Court further observed that Chapter XII of the Code incorporates provisions for initiation of investigation on receipt of information of a cognizable offence continuing the investigation culminating in the submission of a police report otherwise styled as charge-sheet under Section 170 to the Magistrate having jurisdiction, which would imply the end of investigation. According to the Supreme Court in Lakshmi Brahman (supra):

Subsequent proceeding before the Magistrate would be the commencement of inquiry or trial leading to either commitment for trial in the Sessions Court or to discharge or acquittal of the accused by the court having jurisdiction to try the case.

In the said case, the Supreme Court further observed that:

Thus, from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire whether Section 207 has been complied with and Page 3479 then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code.

25. In Kishun Singh v. State of Bihar , the Supreme Court was faced with the contention raised by the appellants therein that unless evidence was recorded during the course of trial, the Sessions Judge had no jurisdiction under Section 319 of the Code to take cognizance and implead the appellants as co-accused solely on the basis of the material collected in the course of investigation and appended to the report forwarded under Section 173 of the Code in view of the clear mandate of Section 193 of the Code. The question that arose before the Supreme Court was, in the words used in the said judgment:

The question which arises for consideration in the backdrop of the aforestated facts is whether the learned Sessions Judge was justified in law in invoking Section 319 of the Code at the stage at which the proceedings were pending before him solely on the basis of the documents including statements recorded under Section 161 of the Code during investigation without commencing trial and recording evidence therein?

After examining the legislative history of the introduction of the new Section 319 as opposed to Section 351 under the Code, and examining the Law Commission's recommendations, the Supreme Court was of the view that Section 319 of the Code is an improved version of Section 351 of the Code. The changes having been introduced therein on the suggestion of the Law Commission to make it comprehensive so that even persons not attending the court can be arrested or summoned as the circumstances of the case may require and by deleting the words 'of which such court can take cognizance' and by adding Clause (b) it is clarified that the impleadment of a new person as an accused in the pending proceedings will not make any difference insofar as taking of cognizance is concerned. In this context, the Supreme Court observed:

In other words it is made clear that cognizance against the added person would be deemed to have been taken as originally against the other co-accused. It is thus clear that the difficulty in regard to taking of cognizance which would have been experienced by the court has been done away with. The section comes into operation at the post-cognizance stage when it appears to the court from the evidence recorded at the trial that any person other than those named as offenders appears to have committed any offence in relation to the incident for which the co-accused are on trial.

In para 11 of the decision in Kishun Singh (supra), the Supreme Court made it clear that upon a plain reading of Sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. The court observed that this power could be exercised only if it so appears from the Page 3480 evidence at the trial and not otherwise. According to the Supreme Court, the said provision contemplated the existence of some evidence appearing in the course of trial wherefrom the Court could prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he could be tried with those already named by the police. Even a person who had earlier been discharged would fall within the sweep of the power conferred by the said provision. In this context, the Supreme Court held:

Therefore, stricto sensu, Section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution.

The court ultimately held as under:

16. We have already indicated earlier from the ratio of this Court's decisions in the cases of Raghubans Dubey and Hareram that once the court takes cognizance of the offence (not the offender) it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. Lutfur Rahman as under:

Therefore, what the law under Section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so Page 3481 committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well.... Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime.

We are in respectful agreement with the distinction brought out between the old Section 193 and the provision as it now stands.

17. For the reasons stated above while we are in agreement with the submission of the learned Counsel for the appellants that the stage for the exercise of power under Section 319 of the Code had not reached, inasmuch as the trial had not commenced and evidence was not led, since the Court of Session had the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal.

26. In Raj Kishore Prasad v. State of Bihar , with reference to the powers under Section 209 and 319 of the Code, the Supreme Court observed as under:

11. The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceedings" have been abolished in cases friable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of 'inquiry' as defined in Section 2(g) of the Code of Criminal Procedure, which defines that " Page 3482 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court", because of the prelude of its being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 CrPC is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session.

From the above extract, it is apparent that the Supreme Court was of the view that the proceedings under Section 207 of the Code would not fall within the ambit of inquiry as defined in Section 2(g) thereof. The proceedings are merely formal and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. It is in this context that the Supreme Court concluded that the Magistrate at the stage of Section 209 CrPC is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session.

27. It would be relevant to note that in Raj Kishore Prasad (supra), the earlier decision of the Supreme Court in State of U.P. v. Lakshmi Brahman (supra), has been virtually held to be per incuriam. The Court was of the view that had the earlier Bench been apprised of the historical perspective, the Bench would also comprehend the word "inquiry" in the same manner as indicated in Raj Kishore Prasad (supra). The latter decision, therefore, was of the view that the provisions under Section 207 or 209 of the Code cannot be regarded as an inquiry as contemplated under Section 2(g) of the Code. With regard to the views expressed by the Supreme Court in the case of Kishun Singh (supra), the Supreme Court in Raj Kishore Prasad (supra) doubted the same in the following words:

14. Learned Counsel differ however on the other question posed in Kishun Singh case. It was whether a Court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed Page 3483 on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the Court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Session (though it ostensibly was under Section 319 CrPC terming material of investigation before it as 'evidence') summoning the unnamed accused to stand trial with the named accused. A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 CrPC, on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie case is made out from the material available on the record.

15. We have respectfully to express, in the wake of the legislative policy, our reservations to such view even though that view has been met with approval in Nisar v. State of U.P. the scheme and design of Chapter xviii and the legislative policy reflected therein seems to have been underestimated. It is designed to secure speedy trial for those who are facing it. Sections 225 to 237 CrPC (which includes Sections 227 and 228) are integrated provisions of a lot which govern in totality the trial proceedings under Chapter xviii titled "Trial before a Court of Session". There seemingly is no intermediate stage envisaged between commitment and trial or the trial proceeding splitting into pre-charge trial and after charge trial. Trial begins with Section 225 when the public prosecutor is present before the Court of Session to conduct the prosecution and opens its case disclosing the evidence by which he proposes to prove the guilt of the accused. It is for him to highlight the particulars of the evidence he would lead to prove the case against the accused facing trial. The stage of Sections 227 and 228 comes as the next step after observance of such procedure, as part of trial. It is thus designed that proceedings to discharge or charge the accused are part of trial. Addition of an accused by summoning or resummoning a discharged accused, and that too without hearing the accused, has only been permitted in the manner provided by Section 319 CrPC on evidence adduced during the course of trial, and in no other way. Having thus expressed our doubts we do not, as at present advised, take the matter any further because the fact situation of the present case does not warrant its resolution, a dire necessity. Besides, we propose to take care of the fact situation by giving appropriate relief to the appellant in the manner suggested later.

Page 3484

28. Finally, the Supreme Court in Raj Kishore Prasad (supra) concluded that the power under Section 209 Cr.P.C to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an "inquiry" and material before him not being "evidence".

29. An examination of the aforesaid decisions of the Supreme Court makes it clear that at the stage of Section 209 Cr.P.C, in the case of a sessions trial, no person can be summoned. Such a person can only be summoned once the trial commences and some evidence comes before the court in the course of the trial. It is also clear that although in the earlier decision in Lakshmi Brahman(supra), the Section 207/209 proceedings were regarded as an "inquiry", the later decision in Raj Kishore Prasad (supra) has categorically held that it would not fall within the meaning of "inquiry" as defined in Section 2(g) of the Code. Therefore, at the stage, at which the proceedings under Section 207 and 209 of the Code take place, there is no question of invoking the powers under Section 319 of the Code. However, at the same time, the point of taking cognizance and of summoning the accused has also gone by. In the present case the facts disclose that the case had proceeded beyond the stage of Section 207 inasmuch as the documents had already been supplied. Since this was a case of a trial by a Magistrate, the next stage would be that prescribed under Chapter XIX, i.e., trial of warrant cases by Magistrates. The first section that appears in the Chapter is Section 238 which requires that when any warrant case instituted on a police report, when the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207. In other words, the commencement of the trial is signalled by the production of the accused before a Magistrate after the stage of Section 207 of the Code has gone by. It is, at this stage, that the Magistrate will satisfy himself as to whether the provisions of Section 207 have been complied with or not. After satisfying himself that the provisions of Section 207 have been complied with, the Magistrate will then consider the questions which arise for consideration under Section 239 of the code, which require him to consider the police report and the documents sent with it under Section 173 and to make such examination of the accused, if any, as the Magistrate thinks necessary. After giving the prosecution and the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for doing so. On the other hand, in view of the provisions of Section 240 of the Code, if upon such examination, if any, and hearing, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence friable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame, in writing, a charge against the accused. If, at this stage, the accused pleads guilty, in view of the provisions of Section 241 of the Code, the Magistrate is required to record the plea and may, in his discretion, convict him thereon. If such a step is undertaken then the trial ends there. However, if a plea of not guilty is taken then the further proceedings under Section 242 (evidence for prosecution) and Section 243 (evidence for defense) etc. shall ensue till the conclusion of the trial. A resume of these provisions clearly indicates that Page 3485 the trial of warrant cases by Magistrates commences the moment the accused appears or is brought before the Magistrate, after the conclusion of proceedings under Section 207. Therefore, even at the stage where the question of discharge and framing of charge is being considered, it is a stage where trial has commenced.

30. In these circumstances, examining the factual position of the present case, I find that the impugned order directing the summoning of the present petitioner was passed at the stage where the question of discharge/ charge of accused Bhupinder Singh was under consideration, after the stage of Section 207 of the Code had been crossed. Clearly the trial had commenced. Once it is held that the trial has commenced, the summoning of a person not shown as an accused could only be done under Section 319 of the Code and that also only upon evidence collected in the course of the trial. Admittedly, no new material/evidence had been collected in the course of the trial and, therefore, Section 319 could not be pressed into service. And as regards Section 190 of the Code, the stage had already been crossed the moment the trial commenced. Therefore, the Magistrate did not have power under Section 190 either, to have summoned the present petitioner.

31. The impugned order dated 04.05.2006 whereby summons were directed to be issued by the learned Metropolitan Magistrate, New Delhi, in respect of the petitioner, is clearly incorrect and erroneous in law on all the three counts urged on behalf of the petitioner.

32. The said order dated 04.05.2006, passed by the learned Metropolitan Magistrate insofar as it directs the summoning of the present petitioner is set aside. It shall, however, be open to the trial court to invoke the provisions of Section 319 Cr.P.C if, in the course of the trial, any evidence comes up which requires the petitioner to be summoned as an accused.

With these observations, this revision petition stands allowed.

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