Delhi High Court
Sunair Hotels Ltd vs State & Another on 4 June, 2010
Author: Sanjiv Khanna
33
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2040/2010
SUNAIR HOTELS LTD ..... Petitioner
Through: Mr. Vijay Aggarwal, Adv.
versus
STATE & ANR ..... Respondents
Through: Mr. Arvind Kr. Gupta, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 04.06.2010
1. This petition under Section 482 and 483 of the Code of Criminal
Procedure, 1973 impugns the order dated 27th April, 2010 passed by the learned
ACMM, which reads :-
"Present Complainant with P.C. Singal and Sh.
Mohit Mathur Advocate.
Accused Sudhir Gupta on bail.
Sh. Vijay Aggarwal Advocate for accused
S.P.Gupta, Kaveen Gupta, Vipul Gupta and
M/s Sunair Hotels Ltd.
Ld. Sh. Aggarwala has produced copy of the
order passed by Hon‟ble High court on 04.03.2010
and submits that this Court should consider its
arguments on the proprietary for issuance of the
summoning oeder etc.
He submits that the case of Adalat Prashad
Vs. Roop Lal Jindal is not applicable, in view of the
specific directions of the Hon‟ble High Court in order
dated 04.03.2010 and the opportunity to his client to
CRL.M.C.2040/2010 Page 1
raise these points, at this stage, I do not find anything
in the order of the Hon‟ble High Court which keeps
this court out of the purview of law emphasized in „
Adalat Prashad Vs. Roop Lal Jindal the arguments
regarding in proprietary and non availability of
summoning can be addressed by Sh. Aggarwala at
appropriate stage. At this stage this court has no power
to recall the order of summoning.
Part arguments on application u/s 173(8)
Cr.P.C heard. It is already lunch time.
Put up on 14.05.10 at 12 noon
( Ajay Pandey )
ACMM-01/New
Delhi
27/04/2010"
2. In view of the decision of the Adalat Parshad Vs. Roop Lal Jindal,(2004)
7 SCC 338, the trial court has no power to recall the summoning order. This is
the correct position in law.
3. Learned counsel for the petitioner submits that he should be permitted to
challenge the summoning order before this Court or the Metropolitan Magistrate
should reconsider and re-examine the summoning order.
4. The petitioner and others had earlier filed criminal M.C. Nos.911/2003,
1992/2006, 2142/2007, 2229/2007, 1988/2008, 64/2006, W.P.(Crl.)
Nos.498/2005, 208/2006, 1191/2006 and 1210/2006 before this Court
challenging the summoning order. These petitions remained pending in the High
Court till 4th March, 2010. The petitioner has filed copy of order dated 6th
October, 2009 passed in these petitions. The said order records the five specific
contentions and legal issues raised by the petitioner including the contention that
the company has been summoned as an accused inspite of the fact that the
company cannot be presumed to have mens rea and the summoning order was a
cyclostyled one. It does not reflect application of mind. Inspite of these legal
contentions on 4th March, 2010 these petitions were disposed of by the High
Court. The said order reads:-
CRL.M.C.2040/2010 Page 2
"04.03.2010
Present:- Mr. K.K. Sud, Sr. Adv., Mr. Atul Sharma, Mr.
Nitesh
Jain, Advocates for the Petitioners.
Mr. Mohit Mathur, Mr. Gaurav Singh, Mr. Ashok
Kumar Sharma, Ms. Bina Gupta, Advocates for
respondents.
Crl. M.C. 911/2003
1 This is a part heard matter. However, today learned counsel
for the petitioners, on instructions, submits that the petitioners
do not want this matter to be disposed of on merits and seeks
liberty to raise all the points which have been raised before this
Court in the Trial Court at an appropriate stage/ at the stage of
hearing arguments on charge. However, they seek protection
from arrest and from personal appearance which orders stands
granted in their favour for the last more than five years.
2 Learned counsel for the respondents, Mr. Mohit Mathur has
no objection to the prayer made on behalf of the petitioner.
3 Taking all these facts into consideration including the
factum of pendency of the case for a period of more than five
years and taking into consideration that ultimately it is for the
trial Court to decide as to whether a charge is to be framed or
not in the aforesaid case against the petitioner and to further
decide whether the case should proceed or not in view of some
of the objections raised on behalf of the petitioner about the
propriety of issuance of summoning order etc., it would be
appropriate to grant liberty to the petitioners to raise all the
issues which have been raised in this petition before this Court
at the appropriate stage/stage of framing of charge before the
concerned Court.
4 Thus, the said Court is directed to deal with all the issues
which have been raised before this Court in this petition at the
appropriate stage/at the stage of framing of charge and also to
dispose of pending applications before it.
5 The petitioners to appear before the concerned Court/trial
Court on 26.03.2010.
6 The petitioners shall also be released on bail on the first date
of their appearance which shall be on or before 26th March,
2010 on furnishing bail bonds in the sum of Rs.25,000/- each
with one surety each in the like amount to the satisfaction of
the concerned court/trial Court subject to the condition that
they shall appear as and when required by the Court concerned
and would join the investigation if so required by the
investigating agency and would not delay the matter. The
petitioners shall also be exempted from personal appearance on
an application moved by them through duly authorized counsel
CRL.M.C.2040/2010 Page 3
unless and until they are required by the Court for any purpose.
The petitioners shall not leave the country without the
permission of the court concerned and would not delay the trial
of the case.
7 With these observations, the petition is disposed of.
8 All pending applications shall also stand disposed of.
However, the interim order passed in various applications
would remain in operation till 26.03.2010.
9 The trial Court/investigating agency will proceed from the
stage where the case is pending subject to the aforesaid
directions.
10 A copy of the order be sent to the concerned Court/trial
Court."
(emphasis supplied)
5. It is clear from paragraph Nos. 1 and 3 of the aforesaid order that the
petitioner gave up their right to challenge to the summoning order in the said
petitions with liberty to raise all points and issues at any appropriate stage/at the
stage of hearing arguments on charge. It is not possible to accept the contention
of the petitioner that appropriate stage meant that the trial court has to re-
examine the summoning order itself or that the summoning order was set aside.
The learned Court did not and has not set aside the summoning order vide order
dated 4th March, 2010. The words „at an appropriate stage‟ means at a stage as
permitted and allowed as per law and as per the decision in the case of Adalat
Parshad (Supra). It was not the intention of the court and no right was given to
the petitioner to challenge the summoning order before the trial court. The
contention that the Metropolitan Magistrate should review the summoning order
is legally untenable, in view of the decision in Adalat Parshad (Supra).
6. At this stage the Learned Counsel for the petitioner states that they should
be permitted to question and to challenge the summoning order which was
passed on 18.1.2003 on merits. I do not think this should be permitted. As
noticed above, the summoning order was challenged in petitions which had
remained pending in this court from 2003/2006/2007 till 04.03.2010. The
petitioners then withdrew these petitions as pointed out above. It will not be a
proper to allow the petitioner to once again raise the same questions after they
CRL.M.C.2040/2010 Page 4
had withdrawn the petitions, which had remained pending in the High Court for
3-6 years. In these circumstances the petition is dismissed.
7. Observations made in this order are for the disposal of this writ petition
and will not be construed as observations on merits, binding on the trial court.
SANJIV KHANNA, J.
JUNE 04, 2010
J
CRL.M.C.2040/2010 Page 5
