Murari Lal Goel vs State Of Nct Of Delhi
2003 Latest Caselaw 573 Del

JUDGMENT

B.N. Chaturvedi, J.

1. The petitioner made an application before the learned ACMM, Delhi requesting for taking cognizance against one Dr. Rakesh Gupta and the management of Sunder Lal Jain Hospital and to issue summons to them in pursuance of a charge sheet filed by the prosecution in case FIR No. 635/98 under Section 304-A IPC. The learned trial court, however, disallowed the application on the ground that after having taken cognizance against the accused named in the charge sheet and having issued summons to them, it was no longer permissible to him to issue summons to any other persons unless evidence is brought forth showing complicity of such persons for the commission of crime in question, in terms of Section 319 Cr.P.C.

2. The plea of the learned counsel for the petitioner is that issue of summons to the accused persons named in the charge sheet was no bar against exercise of power vested in the learned Magistrate to take cognizance of the offence against the aforesaid persons, on the basis of the charge sheet and material placed along with that, under Section 190(b) Cr.P.C.. To support his plea to the said effect, learned counsel for the petitioner makes reference to a decision of the Supreme Court in " SWIL Limited Vs. State of Delhi & Another", 93 (2001) DLT 8 (SC).

3. SWIL's was a case where on filing of charge sheet, the Metropolitan Magistrate had issued summons against the accused shown in the FIR and, thereafter, on the next date fixed in the case, he issued summons to another person. It was held that at the stage of issuing process, it is for the Magistrate to decide whether process should be issued against the persons named in the charge sheet and also the ones not named therein. He is to consider for that purpose the FIR and the statements recorded by the police and the documents filed along with the charge sheet, for taking cognizance under Section 190 Cr.P.C. It was also laid down that Section 319 Cr.P.C. comes into operation in the course of enquiry or trial of an offence. It was ruled that there is no bar under Section 190(b) Cr.P.C. that once the processes are issued against some accused, on the next date the Magistrate cannot issue process to some other person against whom there is material on record but his name is not included as accused in the charge sheet. In view of this, the Court of learned ACMM was not right in declining the application of the petitioner simply on the ground that it was not permissible to issue summons to any person other than those named in the charge sheet and that he could exercise power in that respect only under Section 319 Cr.P.C. after the evidence was recorded. The impugned order dated 11.12.2000 of the learned trial court is thus not sustainable and the same is, therefore, liable to be set aside.

4. Accordingly, the petition is allowed. The order dated 11.12.2000 rejecting the application of the petitioner on the aforesaid ground is set aside and the matter is remanded to the trial court to decide the same on merits.

5. The parties are directed to appear before the trial Court on 30th of September, 2003, which is stated to be the date fixed in the case.

6. Trial court record be sent back immediately.