1994 (7) TMI 376 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of summoning order issued by the Metropolitan Magistrate.
2. Jurisdiction of the Metropolitan Magistrate to summon individuals not charge-sheeted by the police.
3. Applicability of Section 319 of the Code of Criminal Procedure.
4. Consideration of the material evidence against the petitioners.
5. Nature of the summoning order as interlocutory or otherwise.

Detailed Analysis:

1. Validity of Summoning Order Issued by the Metropolitan Magistrate:
The petitioners challenged the summoning order dated November 25, 1992, issued by the Metropolitan Magistrate, which summoned them in connection with the offences for which other accused persons were summoned. The petitioners argued that their names did not appear in the charge sheet, and the Magistrate, being a committing Magistrate, should act merely as a post office for committing the accused persons to the Court of Session.

2. Jurisdiction of the Metropolitan Magistrate to Summon Individuals Not Charge-Sheeted by the Police:
The court examined the power of the Magistrate under Section 190 of the Code of Criminal Procedure, which allows the Magistrate to take cognizance of an offence upon receiving a complaint, a police report, or information from any person other than a police officer. It was noted that taking cognizance is of the offence and not the offender. The court referenced the Supreme Court's decision in Kishun Singh v. State of Bihar, which clarified that once cognizance of an offence is taken, the Magistrate has the duty to identify all offenders involved. The court affirmed that a committal Magistrate could summon individuals not charge-sheeted if prima facie evidence of their involvement exists.

3. Applicability of Section 319 of the Code of Criminal Procedure:
The Metropolitan Magistrate had invoked Section 319 to summon the petitioners. However, the court clarified that Section 319 could only be applied when evidence is recorded during the inquiry or trial, not during the investigation. The court referenced Kishun Singh's case, which held that the term "evidence" in Section 319 refers to evidence recorded during the trial or inquiry by the court. Despite the Magistrate's incorrect application of Section 319, the court found that the summoning order could still be upheld based on the Magistrate's power to take cognizance of the offence.

4. Consideration of the Material Evidence Against the Petitioners:
The court reviewed the statements and evidence presented, including the statements of Mr. J.P. Singh, the complainant's husband, and constable Dilip Singh. These statements implicated petitioners 2 to 4 in the incident, alleging their presence and involvement in the unlawful assembly and conspiracy. The court found that the allegations against petitioners 2 to 4 were not inherently improbable or absurd and that the Magistrate had exercised judicial discretion appropriately in summoning them.

5. Nature of the Summoning Order as Interlocutory or Otherwise:
The respondent's counsel argued that the summoning order was interlocutory and thus barred under Section 397(2) of the Code of Criminal Procedure. However, the court cited the Supreme Court's decision in Amar Nath v. State of Haryana, which held that orders affecting the rights of the accused are not interlocutory. The court concluded that the summoning order was not interlocutory as it initiated proceedings against the petitioners, affecting their rights.

Conclusion:
The court upheld the summoning order against petitioners 2 to 4, finding sufficient prima facie evidence of their involvement. However, the summoning order against petitioner 1 was set aside, with directions for the Metropolitan Magistrate to reconsider the matter based on the material on record. The court emphasized the independence and judicial discretion of the Magistrate, rejecting arguments related to hierarchical judicial positions. The petition was disposed of accordingly.