P V NARASIMHA RAO Vs. STATE

JUDGEMENT

(1.) Lakhubhai Pathak, a resident of United Kingdom submitted a written complaint on September 25, 1987, at the High Commission of India at London addressed to the Director, Central Bureau of Investigation (CBI), New Delhi. The said complaint was treated as a First Information Report and a case was registered by the CBI on February 5, 1988. After completing the investigation on the charge-sheet was filed in the court of Chief Metropolitan Magistrate, New Delhi (for short CMM). The CMM has framed charges under Sections 420, 120 B/420, IPC against Chardraswami and Kailash Nath Aggrawal. During the course of the trial the prosecution has examined and Lakhubhai Pathak as a witness before the CMM and his statement is recorded on July 5, 6 and 3, 1996 but was not completed. On July 9, 1996 the CMM passed on order under Section 319, Code of Criminal Procedure, 1973 (Cr.PC) whereby the petitioner has been added as an accused for being party to the criminal conspiring of cheating the complainant Lakhubhai Pathak and summons have been issued against him under Section 120-B/420, IPC.

(2.) Feeling aggrieved by the said order of the CMM dated July 9, 1996, the petitioner filed a petition under Section 482, Cr.PC in the Delhi High Court for quashing the order dated July 9, 1996 passed by the CMM. The said petition of the petitioner has been dismissed by the High Court by the judgment dated July 30, 1996. Special Leave Petition (Crl.) No. 2048 of 1996 has been filed by the petitioner for special leave to appeal against the said judgment of the High Court. The petitioner has also filed a writ petition (Crl). No. 223 of 1996 under Article 32 of the Constitution of India wherein he has challenged the validity of Section 319, Cr.PC and has prayed that all proceedings that have been initiated against him by the CMM resulting in the order dated on July 9, 1996 and all actions subsequent thereto including the amongst issued for appearance of the petitioner be set aside.

(3.) We have heard Shri K. Parsaram and Shri Kapil Sibal, the learned senior Counsel appearing for the petitioner in both these matters and the learned Attorney General for India. On behalf of the petitioner it has been submitted that the CMM in passing the order dated July 9, 1996 has not considered the statement of Lakhubhai Pathak and the document produced during the course of statement in a proper perspective and has failed to take note of various features which would indicate that no case has been made out for proceeding against the petitioner under Section 319, Cr.PC It has been urged that the power conferred under Section 319, Cr.PC is an extraordinary to be used very sparingly and only when compelling reasons exist and that the power by the CMM. It has also been submitted that though it is open to the petitioner to appear before the CMM in response to the summons and ask for recalling the order dated July 9, 1996 there is very little likelihood of the petitioner succeeding in view of the observations that have been made by the CMM in his order dated July 9, 1996.