2015 (8) TMI 1546 - HC - Indian Laws

Additional complaint - respondent complainant/ Board sought to make the petitioners as accused persons not in the capacity as Directors or Principal/responsible officers of M/s. QRG Central Hospital Research Centre but as Directors or authorised representatives of M/s. QRG Medicare Limited a different company incorporated under the Companies Act - HELD THAT - The facts of the case are hardly in dispute. Original Complaint No. 10 of 2013 (Annexure P-5) was already pending. In the said original complaint even the summoning order dated 25.4.2014 (Annexure P-7) has been issued by the learned court of competent jurisdiction. During the pendency of the above-said original complaint (Annexure P-5) complainant-respondent/Board filed the impugned additional complaint No. 158 of 2014 dated 3.9.2014 (Annexure P-1) which was not maintainable in the present form and at this stage of the trial of original complaint. Learned senior counsel for the petitioners has rightly contended and was fully justified to say so that once the learned court has taken the cognizance of the original complaint the complainant-Board ought to have waited till the appropriate stage and the present petitioners along with other accused persons if any could have been summoned to face the criminal trial as additional accused by moving an appropriate application under Section 319 Cr.P.C. In case after re-examination of the matter the respondent- Board was of the view that some additional accused were also involved in the commission of offence in question it should have waited and taken recourse to the well known procedure of law provided under Section 319 Cr.P.C. by invoking the said provisions at the appropriate stage. Such peculiar fact situation as obtaining in the present case has been taken care of by the legislature by providing Section 319 Cr.P.C on the statute book - However since the complainant-Board proceeded in haste without waiting for the appropriate stage of the criminal trial of its original complaint (Annexure P-5) additional complaint (Annexure P-1) was not maintainable and the same cannot be sustained for this reason also. The cognizance of the offence having already been taken by the learned Magistrate while issuing summoning order (Annexure P-7) in the original complaint (Annexure P-5) neither the additional impugned complaint (Annexure P-1) was maintainable nor the impugned summoning order (Annexure P-3) could have been issued thus the impugned additional complaint (Annexure P-1) as well as the impugned summoning order (Annexure P-3) cannot be sustained for this reason as well. Petition allowed,

Summary

Issues Involved:
1. Maintainability of the additional complaint.
2. Jurisdiction of the trial court in issuing the summoning order.
3. Appropriate procedure for summoning additional accused.

Detailed Analysis:

1. Maintainability of the Additional Complaint:
The primary issue was whether the additional complaint (Complaint No. 158 of 2014) filed by the respondent-Board was maintainable. The court noted that the original complaint (Complaint No. 10 of 2013) was already pending trial, and the summoning order had been issued. The court concluded that the additional complaint was not maintainable because the Code of Criminal Procedure does not provide for filing an additional complaint during the trial of an original complaint on the same set of allegations. The court emphasized that the complainant-Board should have waited for the appropriate stage to move an application under Section 319 Cr.P.C. to summon additional accused.

2. Jurisdiction of the Trial Court in Issuing the Summoning Order:
The court examined whether the trial court exceeded its jurisdiction by issuing the summoning order dated 20.11.2014 (Annexure P-3) based on the additional complaint. It was found that the trial court failed to appreciate the non-maintainability of the additional complaint and erroneously took cognizance of the same offence for the second time. The court held that cognizance of any offence can be taken only once, as per Section 190 Cr.P.C. Consequently, the summoning order was deemed an order without jurisdiction and was unsustainable.

3. Appropriate Procedure for Summoning Additional Accused:
The court highlighted that if the respondent-Board believed additional accused were involved in the offence, it should have invoked Section 319 Cr.P.C. at the appropriate stage of the trial of the original complaint. The court referenced judgments from various High Courts and the Supreme Court, which support the view that cognizance of an offence can only be taken once, and additional accused can be summoned under Section 319 Cr.P.C. during the trial. The court reiterated that the complainant-Board could move an appropriate application under Section 319 Cr.P.C. at the appropriate stage to summon additional accused.

Conclusion:
The court allowed all three petitions, quashing the additional complaint (Complaint No. 158 of 2014) and the summoning order dated 20.11.2014. The court clarified that the complainant-Board retains the liberty to move an application under Section 319 Cr.P.C. at the appropriate stage of the criminal trial of the original complaint to summon additional accused. The trial Magistrate is also empowered to summon additional accused under Section 319 Cr.P.C. on its own initiative. The petitions were allowed with no order as to costs.