MR. SASHI KANT Vs. STATE AND ANR.

JUDGEMENT

(1.) THIS order shall dispose of the aforesaid two connected petitions filed under Section 482 Code of Criminal Procedure (Cr.P.C.) which arises out of the charge sheet filed in FIR No. 148/2002 registered at P.S. Defence Colony, New Delhi and the order dated 28.05.2008 whereby both the petitioners whose name figured in column No. 2 in the charge sheet presented by the SHO concerned have been summoned as accused persons in this case.

(2.) IT may be observed here that once the chargesheet was filed the trial Court issued summons to persons whose name appears in column No. 4 as an accused. However, summons were not issued to the present petitioners. It is only after an application was filed on behalf of the complainant/FIR maker, the present petitioners were also summoned as an accused vide order dated 28.05.2009 which order is challenged by way of this petition.

(3.) IT is submitted that once the case was fixed for hearing arguments on the question of framing of the charge, the trial had commenced and therefore the order issuing summons to the present petitioners was an order which was passed after the commencement of the trial and thus, it was not within the competence of the trial Court to have issued such an order. The only opportunity when the petitioners could have been summoned in this case even if there was any material on record would have been after recording of the evidence of the prosecution and, if the Court was satisfied, then only the court could have exercised its powers under Section 319 Cr.P.C. which is not the case. It is submitted that taking cognizance twice is not permissible in law inasmuch as the stage prescribed under Section 190 Cr.P.C. was already over. Reference has also been made to the judgment of this Court in the case of Anirudh Sen v. State (NCT of Delhi), 2006 (3) JCC 2081, and to another judgment delivered in the case of Jamuna Singh v. Bhadai Shah AIR 1964 SCC 1541 where it has been held that there cannot be no second cognizance of the offence. Reliance has also been placed upon the following judgments: