H.S. Bawa vs Mahinder Prakash
2001 Latest Caselaw 1817 Del

JUDGMENT

S.K. Agarwal, J.

1. By this petition under Section 482 Cr.P.C. petitioner is seeking quashing of the "summons" dated 21.8.1998 issued by Addl. Chief Metropolitan Magistrate, New Delhi summoning the petitioner as an accused under Sections 323/325/342/427/506/34 IPC in the case "Mohinder Prashad v. M.R. Kathuria and Ors., inter-alia pleading that he was not named as an accused in the complaint; that the person arrayed as the accused No. 4 was "D.S. Bawa" and the summons were issued in the name of "H.S. Bawa" (petitioner). He also prayed for an inquiry against the erring officials in this regard. Para 3 of the petition reads:-

"That there is no reference of name of the petitioner, at all, in the complaint. Inspite of this, the petitioner has been served with the aforesaid summons. It is respectfully submitted that reference of some Shri D.S. Bawa, Inspector of Customs, Preventive, is there at Sl. No. 4 of the complaint.

It is respectfully submitted that the petitioner was not posted as Inspector, Customs (Preventive) on the day of alleged incident i.e. 16.9.1993. The petitioner was not posted at all as Inspector (Preventive) Customs, during the relevant period. A copy of the certificate issued by the Supdt., Preventive, Delhi in this behalf is annexed hereto and is marked as Annexure-C."

2. In support of his petition, petitioner has filed "summons" served on him as (Annexure-A), copy of the complaint (Annexure-B), list of witnesses and a certificate issued by his department showing that he was undergoing some training at the relevant time. The petitioner neither filed impugned order of summoning nor the pre-summoning evidence recorded by the trial court before issuing summons. He did not appear before the trial court and straightaway approached this Court. The petition is duly supported by an affidavit of the petitioner. On the above pleadings on 24.9.1998, notice was issued and proceedings before the trial court were stayed. It was ordered:

"Crl. M. (M) No. 2826/98

It is submitted by Mr. Satish Aggarwala, learned counsel for petitioner, that neither the petitioner is one of the accused named int he complaint nor the trial court has passed any order summoning him, but still summons have been issued by the court to the petitioner.

Notice to show cause as to why the petition be not admitted returnable on 12 November, 1998.

Before the next date, the learned trial court will send its report as to under what circumstances summons have been issued to the petitioner.

Crl. M.No. 5793/98

Notice for 12 November, 1998.

Meanwhile, proceedings against the petitioner, before trial court shall remain stayed.

dusty."

3. I have heard learned counsel for the parties.

4. Sh. Satish Aggarwal, counsel for petitioner argued that in the complaint the accused was arrayed as "Mr. D.S. Bawa", Inspector Customs (Prev.) thus summons in the name of "H.S.Bawa", could not be issued, and that it is an abuse of the process of the court, the said summons is liable to be quashed. He further argued that an enquiry should be instituted in the matter. Learned counsel for respondent/complainant, on the other hand, argued that in fact petitioner is guilty of concealing material facts; that on account of typing error the name of the petitioner was wrongly typed as D.S.Bawa in stead of H.S. Bawa in the complaint. The respondent-complainant moved an application; by orders dated 6.3.97, correction was permitted by learned trial court. He seeks to place on record copy of the order passed by learned trial court in the presence of the counsel for petitioner. The order is taken on record. The order reads:

"Present: Sh. M.L. Chugh for the complaint Sh. Satish Aggarwal for accused Nos. 1,3 and 5.

There is an application moved by Ld.Counsel for the complaint to correct the name of accused No. 4 as H.S. Bawa in lieu of D.S. Bawa, The contention of the Ld. Counsel for the accused is that his name has been wrongly written as D.S. Bawa due to typographical mistake.

I have heard the Ld. Counsel for the complainant and have perused the file. Since the name of accused No. 4 is stated to be H.S. Bawa and the same has been wrongly typed as D.S. Bawa the complaint is permitted to make necessary corrections in the complaint.

Necessary corrections made. Issue summons to accused No. 4 and NRW against accused No. 2 on P.F. and R.C. for 6.3.97.

5. Learned counsel for petitioner has not disputed the above order. He has further not disputed that it was passed in his presence and that name of accused No. 4 mentioned as "D.S.Bawa" in the complaint was corrected as "H.S.Bawa". However, he argued that knowledge of the counsel for petitioner cannot be said to be the knowledge of the petitioner and, therefore, he is not liable for the alleged deliberate or intentional concealment of facts. I am unable to agree.

6. "Summons" dated 21st August, 1998 required the petitioner to appear before the Court on 25th September, 1998. Admittedly, on 6th March, 1997, name of accused No. 4 was permitted to be corrected from D.S. Bawa to H.S. Bawa. The order was passed in the presence of counsel for the petitioner, who was appearing in the same case, for the other accused persons. This petition was filed on 15th September, 1998. The petition was drafted and filed by the same counsel. Affidavit in support of the petition clearly states that the petition has been drafted by the counsel for the petitioner. It is thus obvious that the petitioner knew that the name of accused No. 4 in the complaint had already been corrected from "D.S.Bawa" to "H.S.Bawa" by a judicial order. It is inherently importable that the counsel appearing for the co-accused would not have informed the petitioner in this regard. The knowledge of the counsel has to be inferred as the knowledge of the petitioner. Petitioner by concealing material facts misled the Court. Criminal proceedings against the petitioner is stayed since 24th September, 1998. The petition is liable to be dismissed, on this ground alone. Such a practice ought to be deprecated.

7. It is also argued that the petitioner at the relevant time was on training duty in some other place, therefore, allegations against him are not sustainable. These are all questions of facts which cannot be adjudicated, at this stage.

8. In view of the above, petition is dismissed with cost of Rs. 5,000/- to be deposited in Delhi State Legal Services Authority, within 30 days. In default S.I. for 15 days. Petitioner is directed to appear before the trial court on the next date of hearing.