JAGDISH SAHAI MATHUR Vs. STATE DELHI ADMN

JUDGEMENT

(1.) As the reference raises a question pristinely legal, we need not lose much breath on the facts. A brief resume' would suffice.

(2.) One Mohd. Shafi was challaned u/ Ss. 420, 468 and 471 read with S.34 of the Indian Penal Code. The learned Metropoiitan Magistrate, after taking cognizance u/S. 190 of the Code of Criminal Procedure, supplied copies of statements and documents and on hearing arguments on charge first passed an order summoning Jagdish Sahai Mathur and Prem Narain Goel as co-accused u/S. 190(1)(c) of the Code and thereafter framed charges not only against Mohd. Shafi but also against Jagdish Sahai Mathur and Prem Narain. Needless to say, the newly added co-accused found the orders unpalatable. Consequently, they filed revision petition taking the plea that the order passed u/ S.190 of the Code was bad as they could be summoned only u/S.319 of the Code after the recording of evidence. Of course, they also took the plea that there being no prima facie case the charges could not be framed against them. The revision petition came before Y. K. Sabharwal, J. He found that whereas in D. K. Razdan v. State (1987 Chandigarh Criminal Cases, 173), Braham Singh v. State (Crl. R.37/87 decided on 9/04/1987) and Baldev Kumar v. State (1987 (3) Crimes 645), it had been held that recording of evidence was a pre-requisite to the summoning of an additional accused, in Subhash Chander v. State (1989 (3) Delhi Lawyer, 159) : 1990 Cri LJ 1217, it had been held that a Sessions Judge could summon an additional accused on the basis of the statements recorded u/S. 161 of the Code and the documents filed alongwith the report u/S. 173 of the Code. Faced with this situation Sabharwal, J. made reference giving rise to this order.

(3.) Could the petitioners be summoned to stand the trial independently of S.319 of the Code? This is the question which has necessitated the reference and which now stares at us and craves for an answer.