Darshan Lal vs State
2001 Latest Caselaw 285 Del

JUDGMENT

R.S. Sodhi, J.

1. These petitions are directed against the order of the Additional Sessions Judges dated 3.6.1987 whereby the learned Judge has declined to exercise his revisional jurisdiction against the order dated 24.10.1986 passed by the Metropolitan Magistrate summoning the accused under Section 411, IPC. The facts giving rise to this case are that the learned Magistrate while taking cognizance of the case, in the first instance, did not summoned the accused to stand trial under Section 411, IPC. However, upon an application moved by the co-accused under Section 319, Cr.P.C., the Magistrate issued summons to the accused. The aforesaid summons were challenged on the ground that the Magistrate, having once taken cognizance, could not re-evaluate the material before it for the purpose of reviewing the earlier cognizance taken in order to summon the accused persons. Having not been summoned in the first instance the power exercised once, cannot be exercised again and again. The learned Additional Sessions Judge, however, held that the power to summon additional persons as accused is included in the power to take cognizance of the offence. What is sought to be challenged is repeated taking cognizance. The only other provision is Section 319, Cr.P.C. which, in turn, necessarily implies that the Court can, while receiving evidence, summon/add an accused. IN the case in hand, it appears that the learned Magistrate had, while taking cognizance in the first instance preferred not to summon the petitioners herein to face trial under Section 411, IPC. Having once exercised jurisdiction, the clock could not be set back and can only proceed further in which event, unless evidence was recorded, which formed part of material before the Court during trial or inquiry, a fresh accused could not be added. The application moved by the co-accused under Section 319, Cr.P.C. and acted upon by the Magistrate without evidence being recorded would, in my opinion, be bad at law.

2. In view of the discussion above, I hold that the Magistrate could not have summoned the accused by recourse to Section 319, Cr.P.C. without recording further evidence. In this view of the matter the order of the learned Additional Sessions Judge dated 3.6.1987 is set aside.

Crl.M. (M) 851/87, 1132/87 and 1131/87 are allowed.

3. Cr.M. (M) Nos. 851, 1132 & 1131/87 allowed.