Delhi High Court
Acp K.P. Singh vs State on 22 August, 2000
Author: R Sodhi
Bench: R Sodhi
ORDER
R.S. Sodhi, J.
1. By this Crl. M. (Main) No. 1290/98, the petitioner seeks to challenge the judgment and order of the Additional Sessions Judge, Karkardooma Court, Delhi in the Crl.Rev. No. 80/97 dated 21.3.1998 whereby the learned Additional Sessions Judge had upheld the order of the Metropolitan Magistrate dated 28.9.1996 summoning the accused. It was the case of the petitioner before the learned Additional Sessions Judge that the High Court by its Order dated 6.12.1995 had directed the trial court to adjudicate upon the question whether the summoning order was correct and also, inter alia, the effect of Section 140 of the Delhi Police Act will also be considered in the light of the pronouncement of the Supreme Court in the case of Prof. Sumer Chand Vs. Union of India and others, JT 1993 (5) 189. It was also directed by the High Court that the trial court will examine whether it was a continuing offence and when did limitation start running in that case. It was the case of the petitioner that the Metropolitan Magistrate ought to have adjudicated upon the matter in terms of the order of the High Court dated 6.12.1995 as he claimed that the Metropolitan Magistrate was the trial court.
2. However, the Metropolitan Magistrate by his order dated 28.9.1996 had come to the conclusion that since the matter has already been committed to the Court of Sessions, which was the trial court in the matter and would adjudicate upon in the grievance of the petitioner as placed by it before the High Court, which resulted in the High Court order dated 6.12.1995. The petitioner challenged this order of the Metropolitan Magistrate dated 28.9.1996 by way of a Crl.Revision No. 80/97. The learned Additional Sessions Judge by his judgment and order dated 21.3.1998 noted that :
".........The main contention of the Petitioner is that High Court in its order dated 6.12.1995 adjudicate that the plea of the Petitioner will be considered by the Ld. Trial Court. I have gone through with the order as under :
"Without prejudice to the plea and the contentions of the Petitioner I am not inclined to quash the proceedings at this stage. The effect of Section 140 of DP Act will be considered by the Trial Court in the light of the pronouncement of the Hon'ble Supreme Court in the case of Prof. Sumer Chand Vs. Union of India and Others reported as JT 1993 (5) 189. It will also be for the Trial Court to examine whether it was a continuing offence and when did the limitation start running in this case."
In this contest obviously the Metropolitan Magistrate was not the Trial Court since offence committed in this case by the accused persons is triable by the Session Court so after committal the Session Court becomes the Trial Court which is this Court to whom the case has been committed for trial and it shall be appropriate for this Court at appropriate stage i.e. at the stage of hearing arguments on charge the effect of above mentioned judgment qua the role of the Petitioner shall be considered.
The next grievance of the petitioner is that vide application dated 21.12.95 the Petitioner wanted to rectify the order in term of Hon'ble High Court order above mentioned. The Trial Court observed that since the case is committed to Session Court on the associate other Session trial because the Session Court is Trial Court and the accused may put his plea there. I do not find any illegality in this order because as observed above the Metropolitan Magistrate was not the court of trial therefore he has rightly observed that it is the Session Court who tries the present case will consider the plea.
In regard to next contention that the summoning of the Petitioner is beyond jurisdiction because no sanction under Section 197 and 140 DP Act was obtained by the Lt. Governor for prosecuting the Petitioner. I observe that the Ld. M.M. in order of committal dated 2.4.94 has mentioned the role of the present petitioner and he has found a prima facie case under Section 167/201/217/218/119/120/211/109/114 IPC read with Section 120(B) IPC.
In this contest I am of the view that the plea of sanction can be addressed by the Petitioner at the time of charge because this is a Court of trial."
3. Aggrieved of this Order, the petitioner has moved this Court by way of a petition under Section 482 of the Code of Criminal Procedure. It is urged before me that during pendency of the investigation under Section 156(3) of the Code of Criminal Procedure, the Magistrate could not have issued the summons under Section 202 of the Code of Criminal Procedure because having once referred the complaint for investigation under Section 156(3) of the Code of Criminal procedure, which must necessarily result in the police filing a report under Section 173(2) of the Code of Criminal Procedure, no separate complaint was before the Magistrate to enable him to exercise his powers under Section 202 of the Code of Criminal Procedure. Another facet of the argument that is placed before me is that under Section 210 of the Code of Criminal Procedure the complaint case will be stayed till the police report under Section 173 of the Code of Criminal Procedure is not filed. The question of applicability of Section 140 of the Delhi Police Act was also raised. Having gone through the material on record, I am of the view that this petition is gross abuse of process of Court inasmuch as no final order has been made by the Court of Sessions (trial court) in terms of order dated 6.12.1995 of the High Court. Yet the petitioner seems to be anxious that the High Court in exercise of powers under Section 482 of the Code of Criminal Procedure should now adjudicate upon the matter, although, it had already by its order dated 6.12.1995 directed the trial court to do so. This, as already stated, is an attempt to overreach the Court. While deprecating this attempt, I am of the view that this petition under Section 482 of the Code of Criminal Procedure is misplaced, premature and a gross abuse of the process of the court. I, therefore, dismiss the same with costs quantified at Rs. 5,000/- to be paid to the respondentState.
4. With these observations, the petition is dismissed.
