BIMAL BHARATHWAL Vs. STATE THROUGH CBI

JUDGEMENT

(1.) The petitioners herein are aggrieved by the order of the Ld. MM dated 06.10.2007 wherein, the Ld. MM was pleased to issue summons to the petitioners as accused, whereas in the charge sheet the petitioners were cited as prosecution witnesses.

(2.) The brief facts necessitating the present petition are that, on the complaint of one D.R. Singh, Sr. Manager, Vigilance NR (Indian Airline Ltd. Safdurjung Airport), the CBI registered a case RC 4 (s)/ 2000- SIU-I, on 16.05.2000. Thereafter the charge sheet of the offence was submitted in the court of Ld. MM on 17.11.2000 wherein the petitioners were cited as prosecution witnesses. Thereafter, vide order dated 28.11.2000, the Ld. MM was pleased to take cognizance of the offence and issue summons to the accused persons named in column one of the charge-sheet. A supplementary charge sheet was filed by the CBI on 19.03.2002. The matter was fixed for argument on charge on 21.04.2006 vide order dated 23.01.2006. On 21.04.2006, the accused persons, namely F. George, Brijesh Kumar and Pradeep Kumar moved an application before the Ld. MM to summon the petitioners as accused in the case on the premise that as per statements of the petitioners under Section 161 Cr.PC, their involvement was made out in the alleged conspiracy, but they had been cited as witnesses and not accused by the CBI in the chargesheet. A reply was filed by the CBI to the said application contending that the petitioners had no role to play in the alleged conspiracy. On the contrary, they were victims of the conspiracy hatched by the accused persons/ respondents no.3 to 7. Rejecting the contentions of the CBI, the Ld. MM was pleased to summon the petitioners vide impugned order dated 06.10.2007. Hence the present petition praying for quashing of the summoning order qua the petitioners.

(3.) The learned counsel for the petitioners submitted that the petitioners have been victims of a conspiracy hatched by the other accused persons and were not accomplices in the conspiracy. The petitioners were mentioned in column 4 of the chargesheet as witnesses. The cognizance of the offence was already taken by the LD. MM on 28.11.2000 against the accused persons and a second cognizance qua the petitioners without revelation of any new material evidence incriminating the petitioners in the offence is bad in law. It is submitted that the application to array the petitioners as accused was filed by the respondents no.3 to 7/ accused persons in the trial court and not by the CBI. On the contrary, the investigation agency has submitted a reply opposing the application of the accused persons to summon the petitionerscontending that the petitioners were victims and not accomplices to the alleged conspiracy. It is further submitted that the case was already fixed for arguments on charge. The Magistrate was empowered to take recourse to section 319 CrPC and summon the petitioners only if any incriminating evidence is adduced during inquiry/trial, but cannot at this stage take cognizance under Section 190 Cr.PC qua the petitioners. Reliance is placed on the judgment of this court in Anirudh Sen v. State (NCT of Delhi),2006 3 JCC(Del) 2081.