Umesh Gogia And Anr. vs State
2001 Latest Caselaw 1117 Del

ORDER

K.S. Gupta, J.

1. This order will govern the disposal Crl. M.(M)Nos. 1488/2001 filed by Umesh Gogia and Crl.M.(M)No. 1489/2001 filed by Jagdish Chand Gogia.

2. In both the petitions filed under Section 482 Cr.P.C., the petitioners seek setting aside of the order dated 9th February, 2001 passed by an Addl.Sessions Judge dismissing Crl.R.Nos.1/2001 and 2/2001 and 2/2001 filed against the summoning order dated 12th July, 1999. Without referring to the allegations made in FIR No. 107/00, it may be noticed that after competing investigation in the case, the police submitted charge sheet under Sections 420/506/120-B IPC against Jagdish Chand Wadhwa and Smt.Tripta Wadhwa. Names of both the petitioners had been shown in the charge sheet in coloumn No.2. By aforesaid order dated 12th July, 1999, Metropolitan Magistrate having jurisdiction over PC Karol Bagh took cognizance against the two petitioners holding that there were specific allegations against them of conspiracy Along with said Jagdish Chand Wadhwa and Tripta Wadhwa, co-accused. Dis-satisfied with this order, the petitioners filed said revision petitions which were dismissed.

3. Short submission advanced by Sh.S.S.Sobti for petitioners was that the petitioners whose names were shown in coloumn No.2 in charge sheet, could have been summoned as accused persons only under Section 319 Cr.P.C. on the strength of evidence, if any, during trial and by the time order dated 12th July, 1999 came to be passed even the charge had not been framed. Reliance was placed on the decisions in Ranjit Singh Vs. State of Punjab. , Joginder Singh and Anr. Vs. State of Punjab and Anr., 1979 SCC (Crl) 295 and Raj Kishore Prasad Vs. State of Bihar and Anr., 1996 IV AD SC 184. Submission is, however, without any merit. Joginder Singh's case was considered in Ranjit Singh's case and in the latter decision it was held that the power to array a new person as an accused under Section 319 Cr.P.C. by a Court of Session cannot be invoked at a stage prior to collecting evidence during trial in the case. In Raj Kishore Prasad's case (supra), it was held that a Magistrate while acting under Section 209 Cr.P.C. cannot associate another person as accused in exercise of power under Section 319 Cr.P.C. It may be noticed that the offences for which cognizance has been taken against the petitioners are friable by a Metropolitan Magistrate and none of the said three decisions have any relevance on the issue on hand which is directly covered by a decision of the Supreme Court in Abhinandan Jha and other Vs. Dinesh Mishra, . Question which arose for consideration in this decision was that whether a Magistrate could direct the police to submit a charge sheet, when the police, after investigation into a cognizable offence, had submitted a final report, under Section 173 Cr.P.C. While dealing with that question in para No. 17 at page 123 of the report, it was held:-

"There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such power be implied. There is certainly no obligation, on the Magistrate, to accept the report, If he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under Section 190(1)(c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed."

4. Power to take cognizance under Section 190(1)(c) by a Magistrate is independent of the power under Section 319 Cr.P.C. Metropolitan Magistrate seems to have taken cognizance against the petitioners under Section 190(1)(c) Cr.P.C. by the aforesaid order dated 12th July, 1999. Thus, no interference is called for in the matter under Section 482 Cr.P.C.which power is to be exercised sparinly and with circumspection.

5. Consequently, both the petitions are dismissed.