Anil Dev Singh, J.
1. This is a petition under S. 482 of the Code of Criminal Procedure whereby the petitioners pray for quashing the order dated November 25, 1992 passed by Mr. K. S. Mohi, Metropolitan Magistrate, Delhi summoning them in a case based on FIR No. 186/1992.
2. On August 24, 1992 at 11.40 p.m., a First Information Report was lodged by Smt. Ranjeet Kaur, complainant, with the Police Station Subzi Mandi from which it appears that the complainant was staying at 6, Boulevard Road in the official accommodation provided to her husband Mr. J. P. Singh, ASJ for the last five years. It also appears that the Delhi Administration had allotted the land covered under Bungalows Nos. 4, 6, 8 and 10 Boulevard Road to St. Stephens' Hospital subject to their vacation. Against this a writ petition was moved by Lawyers Forum for Civil Liberties in which an interim stay was granted by this Court. In respect of bungalow No. 4, it is asserted that on its vacation by one Mr. R. K. Khanna, forcible possession thereof was taken by St. Stephens Hospital. It is alleged that after taking over the possession of the said bungalow, demolition and construction work was started on the same by the management of the Hospital. Further case as disclosed by the FIR is that the St. Stephens side started troubling the complainant and her family by cutting telephone wires and tampering with electric wires. Besides the labourers employed by them used the pathway running between bungalows Nos. 4 and 6. The labourers employed by the St. Stephens Hospital were lodged in the garage of bungalow No. 4, which is opposite the garage of the complainant and adjoins her servant quarters. The first information report further states that the women folk living in the said servant quarters were being harassed by the labourers which led to making of a written complaint by the complainant's husband to the District Judge and Police. As a result of the complaint, it was decided between the parties that the labour employed by St. Stephens' Hospital would not use the aforesaid pathway and will also not create any trouble. However, on August 23, 1992 Badarpur (building material) was allegedly stacked alongside the eastern wall of the complainant's bungalow with the intention of getting the premises vacated. As a result of the pressure of the said building material, the wall gave way and some persons were injured including one Bhim Singh, who was staying in the servant quarters of bungalow No. 6. On August 24, 1992 at 4 p.m. a duty constable came running to the bungalow and reported that 20-25 security men from St. Stephens' Hospital including their Head Mr. Verghese were including in vandalism in the common pathway despite his objection. The police guard felt that force would be necessary to prevent a fight. Upon this complainant's husband rang the police chowki for reinforcement. Thereafter the constable went to his post for discharging his duties. The complainant, however, followed the constable to see for herself as to what was happening. On seeing the complainant, the security guards of St. Stephens' Hospital said that this was the wife of the Sessions Judge whereupon Verghese is stated to have abused the complainant and holding both her wrists dragged her. Verghese is also said to have stated that the complainant was the root cause of the trouble. Seeing the complainant being dragged, Chanda, wife of Bhima, raised an alarm as a result whereof other people who resided in the servant quarters of Bungalow No. 6, namely, Lalji, Rajinder, Shambhu, Pritam and others assembled at the place of the incident. They objected to the behavior of the security guards. At this juncture, the complainant's husband also came out. On seeing him Verghese is alleged to have shouted :-
"Maro Sale Ko ................" Yehi Session Judge Hai."
3. On being told so, the security men allegedly started pelting brickbats at the complainant's husband and servants. In order to save himself, he ran towards the bungalow. In the meantime, the complainant managed to extricate herself from the grasp of Verghese and ran towards the house. Thereafter, the security guards are stated to have pelted brickbats on the Bungalow No. 6 as a result of which the backdoor thereof was broken. The complainant's husband again rang up the police. On the arrival of the police, the security guards, except one, namely Pritam Singh, managed to escape. The complainant concluded the FIR by stating that Verghese and other security men, with the common intention of getting the house and the servant quarters vacated, attacked her, they indulged in vandalism on the common pathway, obstructed the police guard from performing his duties, outraged her modesty, injured her and attacked her husband and other people with the intention to kill them. Investigating Officer Mr. P. C. Mann, S.I. on arrival at the spot allegedly found brickbats lying scattered on the site and also found the back door broken due brickbatting. A case under sections 147, 148, 149, 186, 323, 427, 354, IPC was registered.
4. During investigation, the statement of Mr. J. P. Singh, Addl. District & Sessions Judge was recorded by the police on August 25, 1992. He inter alia stated that every act was masterminded and executed to murder him because he had been filing complaints against the management of St. Stephens' Hospital to the police and the District Judge. The complainant's husband also stated that besides Verghese, Chief Security Officer and Amar Singh, Security guard of St. Hospital, whom he personally knew, some other security staff, whose names he learnt from the residents of the servant quarters and the two police constables on duty, also participated in the attack. According to him the attack was a result of a conspiracy and planning of the management of St. Stephens' Hospital and he and his wife were attacked by the officials and security staff of the St. Stephens' Hospital. A further supplementary statement of Mr. J. P. Singh was recorded by the police on September 20, 1992. Narrating the incident of August 24, 1992, which took place at 9.30 p.m., he averred that he was going through a file when the constable came to him and stated that 20-25 private security guards and some other persons of St. Stephens' Hospital had launched an attack. Thereupon he and the constable telephoned the police post for additional force. He further reiterated his earlier statement about the incident. Besides, he stated that the incident was a result of the conspiracy and planning by the management comprising of Dr. J. Jacob, Director St. Stephens' Hospital, Mr. S. K. Mukherjee (Retd. IPS Officer), G.S., St. Stephens Hospital, Mr. P. U. Verghese (Security Officer), Mr. John Massey (Personnel Officer), Mr. Amar Singh (Security Inspector), Mr. C. P. Mathew (Receptionist) and other security guards of the St. Stephens' Hospital. He also averred about the presence of petitioners 2 to 4 at the time of the incident.
5. Besides the statement of the complainant and her husband, the Investigating Officer also recorded the statements of several other persons under S. 161 of the Code of Criminal Procedure. These persons were Dilip Singh, Shaji Jan, Pritam Singh, Rajinder Kumar. Madan Lal, Chanda, Urmil, Shanti, Sunita and Shambhu. While the first two persons were constables on duty at bungalow No. 6, the remaining persons were the residents of servant quarters attached to the said bungalow. The statement of constable Dalip Singh which was recorded by the Investigating Officer on August 25, 1992 also needs to be noticed. He, inter alia, stated that on the date of incident at about 9.35 p.m., Mr. Verghese (Chief Security Officer of St. Stephens' Hospital) came on the sport with 20-25 security guards, that all of them were armed with iron rods and sticks (dandas), that on arrival at the spot they went on a rampage and also started removing the wires, that he asked Verghese and the security guards not to indulge in such acts, but Verghese and security guards did not listen to him and Verghese stated that he was acting under orders of his Director, that they will also see him as their Director was highly influential, that at the time of the incident he wanted to operate the wireless set but it did not work and, therefore, he went to the bungalow and telephoned the police, that thereafter he came out being followed by the complainant and the complainant's husband, that on seeing the Sessions Judge and his wife Verghese asked Amar Singh as to who the lady was, that Amar Singh told him that she was the wife of the Sessions Judge, that Verghese abused her and caught hold of her wrists, that he dragged her for 10-15 steps and also said that she was the main cause of the trouble, that on seeing the Sessions Judge, Verghese abused him and asked the security guards to strike him ("Maro Sale Ko"), that the security guards then started pelting stones at the complainant and her husband, that the complainant and her husband ran to the bungalow through the back door, that the other persons also ran to their quarters and in the meantime, additional force came on the spot, that on seeing the additional force, security guard except Pritam Singh fled away, that stones and brickbats were littered on the spot and that the back door of the bungalow was broken due to brickbatting.
6. After the completion of the investigation, challan under S. 173 was filed against accused under sections 147, 148, 149, 353, 186, 427, 325, 354, 307, 452, IPC and S. 3 of the Prevention of Damage to Public Property Act. The challan, however, did not arraign the present petitioners as accused persons.
7. On October 17, 1992, the complainant filed an application before the Id. Metropolitan Magistrate for summoning the petitioners as accused persons. In regard to the role of the petitioners, it was stated as under :
"2. That statement under S. 161, Cr.P.C. of Shri J. P. Singh husband of Smt. Ranjeet Kaur was recorded on 25-8-1992 where he has inter alia clearly mentioned that officials and security staff of St. Stephens Hospital committed murderous attack on him. He has also mentioned in the concluding para of his statement that the said attack was apparently the result of a conspiracy and planning by the management of St. Stephen Hospital. On 27-6-1992 he submitted a detailed complaint to the High Court of Delhi, copy of which was sent to the Commissioner of Police on 29-8-1992. In the said complaint, he clearly mentioned the names of Dr. J. Jacob Mr. S. K. Mukherjee, Mr. John Massey, M. C. P. Mathew and others. On 20-9-1992, supplementary statement of Shri J. P. Singh was recorded in continuation of his statements dated 24-8-1992 and 25-8-1992 under S. 161, Cr.P.C. and he gave names of the officials mentioned in his said statement dated 24/25-8-1992 under S. 161, Cr.P.C. The said names are Dr. J. Jacob, Mr. S. K. Mukherjee, Mr. Jacob Massey, Mr. C. P. Mathew and others. Out of these above mentioned four persons except Dr. J. Jacob, the others had accompanied the security staff in the murderous attack on him and dragging of his wife. Dr. J. Jacob was among the conspirators and planners besides the above mentioned persons. The names of Mr. P. U. Verghese, Mr. Amar Singh and others are not repeated because they are already accused persons in the challan. The abovementioned should be tried along with other accused persons".
8. On coming to know of the application filed by the complainant, the petitioners on October 29, 1992 also moved an application before the learned Metropolitan Magistrate praying that they should be heard in the application filed by the complainant. By his undated order, the learned Metropolitan Magistrate came to the conclusion, that the petitioners had no locus standi in the matter at that stage. Accordingly, he dismissed the application of the petitioners. Thereafter, by his order dated November 25, 1992, the learned Metropolitan Magistrate allowed the application of the complainant dated October 17, 1992 and summoned the petitioners in connection with the offences for which the other accused persons were summoned. It is this order of Metropolitan Magistrate which has led to the filing of the present application under section 482 of the Code of Criminal Procedure.
9. Two basic points have been raised before me by the learned counsel for the petitioners. Firstly, it was urged that the learned Metropolitan Magistrate was not right in summoning the petitioners as their names did not figure in the challan and he being a committing Magistrate had merely to act as a post office for the purposes of committing the accused persons to the Court of Session as offence under S. 307, IPC was exclusively friable by that Court. In nutshell, his argument was that under the Code of Criminal Procedure, a committing Magistrate is not empowered to add any person as an accused who has not been charge-sheeted. Secondly, it was submitted that the learned Metropolitan Magistrate was not justified in summoning the petitioners as there was no material against them which could warrant the passing of the impugned order by him.
10. Before adverting to the points raised by the learned counsel for the petitioner, a preliminary submission raised by the learned counsel for the respondent needs to be noticed at the outset. He contended that the summoning order passed by the learned Metropolitan Magistrate being an interlocutory order, the bar of S. 397(2) of the Code of Criminal Procedure would operate and power under S. 482 cannot be exercised to defeat the bar.
11. I regret my inability to accede to the argument of the learned counsel for the respondent. In Amar Nath v. State of Haryana, , the Supreme Court while dealing with a similar
argument held that orders which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory in nature so as to be outside the purview of the revisional jurisdiction of the High Court. In that case, the order of the Magistrate summoning the appellants therein was held to be an order which decided a serious question as to the rights of the appellants, who had been put on trial. In that view of the matter, it was held that revision against the order was fully competent under S. 397(1) or under S. 482 because the scope of both the provisions in the matter of this kind was more or less the same. Coming to the case in hand, the passing of the impugned order has resulted in the initiation of proceedings against the petitioners. But for the impugned order, the question of their being put on trial would not have arisen at this stage. In these circumstances it cannot be said that no right of the petitioners was affected by the impugned order. Therefore the order summoning the petitioners cannot be said to be of an interlocutory nature attracting the bar of S. 397. Thus there is no merit in the submission of the learned counsel for the respondent which is hereby rejected.
12. Coming to the first point raised by the learned counsel for the petitioners, it would be necessary to allude to S. 190 of the Code of Criminal Procedure, 1973. This Section sets out three alternative modes by which a Magistrate can take cognizance of an offence for the purpose of setting in action the criminal justice system to bring the accused before the court for starting action against him. The cognizance of an offence can be taken by a Magistrate in the following ways :
(a) Upon receiving a complaint of facts which constitute such offence.
(b) Upon a police report of such facts.
(c) Upon information received from any person other than a police officer or upon his own knowledge.
13. Since S. 190 deals with cognizance of offence, the question arises as to what is the meaning of the word 'cognizance'. The matter is no longer res integra as the same stands decided by the Supreme Court in Kishun Singh v. State of Bihar, . The Supreme Court in this regard observed as follows (at page 1704 of Cri LJ) :
"Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under S. 200/204 of the Code (See Jamuna Singh v. Bhadai Sah, ) :
14. Thus when the Magistrate directs his mind to the allegations of accusations made in the complaint, police report or statements of the persons examined by the police under S. 161 of the Code of Criminal Procedure with a view to taking notice of the offence and proceeds against accused persons, he is said to have taken cognizance of the offence. The power of summoning any person as accused in a case flows from the power of the court to take cognizance of the case involving an offence.
15. As held in Kishun Singh (supra), once the Magistrate takes cognizance of the offence, he may proceed to try the offence, save where the case is transferred under S. 191, or committed the case for trial under S. 209 of the Code if the offence is friable exclusively by the Court of Session. There is no dispute that where the case is friable by the Magistrate and if he prima facie finds from the material placed before him that apart from the persons charge-sheeted by the police there are other persons who appear to be involved in the commission of the offence, he is empowered to summon them. In the present case, however, the dispute is whether a Magistrate is empowered to summon any person other than one charge-sheeted by the police, in a case which is exclusively friable by the Court of Session.
16. It is well settled by catena of authorities that persons not charge-sheeted can still be summoned by the Magistrate if he is satisfied that there is prima facie ground for issuing process against them even in a case which is exclusively friable by the Court of Session. In Hare Ram Satpathy v. Tika Ram Aggarwala, , the Supreme Court had an occasion to deal with the question similar to the one posed in the present case. From the facts of Hare Ram's case (supra) it appears that a report was lodged against 13 persons for the murder of appellant's brother, Purshu Ram Satpathy. The police filed a charge-sheet against six persons. The respondents, however, were shown in column 2 of the charge-sheet as according to the police no offence appeared to have been made out against them. The learned Magistrate, before whom the charge-sheet was filed, after going through the statements of the appellant and three other persons recorded under S. 161 of the Code of Criminal Procedure found a prima facie case under S. 302 of the Indian Penal Code against the respondents as well. Therefore, the Magistrate directed the issue of non-bailable warrants against them. Against this order of the Magistrate, the respondents filed a revision petition in the High Court of Orissa. A learned single Judge of the High Court, after detailed scrutiny of the aforesaid statements made by the appellant and others, set aside the order of the learned Magistrate issuing process against the respondents on the ground that there was no material on record to make out a prima facie case against them. Thereafter, the matter was carried in appeal to the Supreme Court. Following two questions came to be considered by the Supreme Court in the case (at page 1688 of Cri LJ) :-
"1. Whether, after submission of the final report by the police stating therein that there was no sufficient evidence to justify the forwarding of the respondents to him, it was open to Sub-Divisional Magistrate, Balangir to add the respondents as accused in the case and issue process against them.
2. Whether the High Court was justified in going into the merits of the case and interfering with the order of the Sub-Divisional Magistrate impleading the respondents as accused and issuing process against them in exercise of its powers under S. 482 of the Code of Criminal Procedure, 1973".
17. With regard to the first point, the Supreme Court relying upon its earlier decision in Raghubansh Dubey v. State of Bihar, AIR 1967 SC 116 : (1967 Cri LJ 1081) observed as under :
"The first point is no longer res integra. It is squarely covered by the decision of this Court in Raghubans Dubey v. State of Bihar , where it was held as follows :
'In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is duty to proceed against those persons. The summoning of the additional accused is part of the proceedings initiated by his taken cognizance of an offence.
5. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, this Court while laying down the categories of the
cases in which an order of a Magistrate issuing process against the accused can be quashed observed :
It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.'
6. To the same effect is the decision of this Court in Chandra Deo Singh v. Prokar Chandra Bose, where after a full
discussion of the matter it was held that at the time of taking a decision whether a process should issue against the accused or not, what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant so as to justify the issue of process and commencement of proceedings against the accused, and not whether the evidence is sufficient to warrant his conviction.
7. From the foregoing it is crystal clear that under S. 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence.
8. In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our judgment exceed the power vested in him under law.
9. The first point is accordingly decided in the affirmative."
18. The decision in Hare Ram's case was rendered by the Supreme Court after the present Code came into force, and even though Raghubansh Dubey's case arose at a time when the old Code was in force, the Supreme Court did not find any change in the legal position, and therefore, it affirmed the decision in Dubey's case. This position also emerges from the latest decision of the Supreme Court on the point in Kishnu Singh's case (supra) in which both the aforesaid decisions were cited with approval. In this regard the Supreme Court laid down as follows :
"13. The question then is whether dehors S. 319 of the Code, can similar power be traced to any other provision in the Code or can such power be implied from the Scheme of the Code ? We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under S. 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under S. 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under S. 190(1)(b) of the Code. In the latter case, the Magistrate may either order investigation by the police under S. 156(3) of the Code or himself hold an inquiry under S. 202 before taking cognizance of the offence under S. 190(1)(a) or (c), as the case may be, read with S. 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under S. 191) or commit him for trial under S. 209 of the Code if the offence is friable exclusively by a Court of Session. As pointed out earlier cognizance is taken of the offence and not the offender. This court in Raghubansh Dubey v. State of Bihar, stated that once cognizance of an
offence is taken it becomes the court's duty to find out who the offenders really are and if the Court finds that apart from the persons are involved, it is his duty to proceed against those persons by summoning them because the summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. Even after the present Code came into force, the legal position has not undergone a change; on the contrary the ratio of Dubey's case was affirmed in Hariram Satpathy v. Tikaram Agarwala, . Thus far there is no difficulty."
19. Thus it is manifestly clear from the decisions of the apex court that a committal Magistrate is empowered to pass an order summoning persons not charge-sheeted by the police, if it is prima facie of the opinion that they are also involved in the commission of the offence.
20. Learned counsel for the petitioner relied upon the single Bench decision of the Punjab and Haryana High Court in Jaswant Singh v. The State of Punjab, 1983 Rec Cri C 571, wherein it was held that in a case which is exclusively friable by the Court of Session. The committal Magistrate has no jurisdiction to summon persons who have not been forwarded by the police to the Magistrate for committing them for trial. This view is, in conflict with the Full Bench decision of the Punjab & Haryana High Court in Lal Chand v. State of Haryana, 1983 Cri LJ 1394 wherein, while relying upon a Division Bench judgment of the same court in Surat Singh v. State of Punjab, 1981 Cri LJ 585 and decision of the Supreme Court in Hare Ram Satpathy's case it was held that the committing Magistrate has the power to issue process against additional accused not sent up by the police, when it appears to him from the material on record that they were also involved in the commission of the offence. In this regard the Full Bench has held as follows :
"A Division Bench in Surat Singh v. State of Punjab, 1981 Chand LR (Cri) 547 : (1981 Cri LJ 585) has unreservedly held that the committing Magistrate, on the basis of the final report under S. 171 of the Code, had jurisdiction to differ with the conclusion of the police and direct that the accused not sent up for trial and mentioned in Column No. 2 thereof, should also be summoned and committed to the Court of Session under S. 209 thereof. The aforesaid view was rested on the surer foundation of Hare Ram Satpathy's case (1978 Cri LJ 1687) (SC) (supra) and it was because of this that not the least hint of criticism was levelled against these judgments on behalf of the petitioners."
21. Thus from the ratio of the decisions of the Supreme Court in Hare Ram, Raghubansh Dubey and Kishnu Singh cases (supra) it clearly follows that a committing Magistrate taking cognizance of the offence is also empowered to find out whether any offender has been left out by the police from being charge-sheeted. Summoning of the additional accused is part of the proceedings initiated by taking cognizance of an offence. While this is so, it is also correct that under S. 209, Committing Magistrate has no power to discharge the accused sent up by the police nor he has the power to take oral evidence (see the decision of the Supreme Court : Sanjay Gandhi v. Union of India), . This, however, does not mean that the narrow
aperture through which the committing Magistrate has to look at the case limits him from ascertaining as to whether any additional person, though not charge-sheeted, had been left out by the police from making him an accused in the case.
22. In view of the foregoing, I am of the view that a committal Magistrate has the power to arraign additional accused if there is material on record which prima facie shows their complicity or involvement in the case, though they may not have been charge-sheeted by the police.
23. In regard to the second point, learned counsel for the petitioners submitted that there was no material against the petitioners for proceeding against them. On the other hand learned counsel for the respondent submitted that there was ample material on the basis of which, the learned Metropolitan Magistrate was justified in summoning the petitioners. He invited my attention to the statement of Shri J. P. Singh dated August 25, 1992 in which he referred to the alleged murderous attack on him and his wife by the officials and the security guards of the St. Stephens' Hospital. In the statement he further alleged that every act was mastermind and executed to murder him because he had been filing complaints against the management of the St. Stephens' Hospital. The statement also attributed to the management of the St. Stephens' Hospital conspiracy and planning of the murderous attack on them. Learned counsel then referred to the supplementary statement of the complainant's husband dated September 20, 1992 and laid emphasis on the following portions thereof in support of his submission of complicity of petitioners in the incident dated August 24, 1992 :
"On 24-8-92 at about 9.30 p.m. I was studying a file when one constable came rushing to me stating that 20 to 25 private security guards and some others persons of St. Stephens' Hospital had attacked and he wanted to telephone the police post for additional force. At once police post Tis Hazari was contacted by him from my telephone and he had a talk with the Duty Officer for reinforcement. The D.O. also spoke to me and I told him to rush the force as demanded by the police constable and that I shall see as to what was happening. My wife Smt. Ranjit Kaur followed the police constable and I followed her after closing the file which I was reading. We saw that some private security guards of St. Stephens Hospital were catching hold of and molesting 2 ladies including wife of Bhim Singh, who was injured due to the wall collapse, a day earlier. My wife objected as to why they were doing so. My Verghese security I/c of St. Stephens' Hospital enquired as to who this lady was. When his security guards told him that she was the wife of Sessions Judge, Mr. Verghese filthily abused her, caught hold of her wrists and started dragging her, stating that she be taken away. At this the other ladies raised alarm "Bibiji ko le gaya". I ran forward then Mr. Verghese shouted that here is the Sessions Judge "Maro Sale Ko". Then the security guards started pelting bricks on me .......
This all happened when the two police officials were helplessly trying to prevent the private security guards led by Mr. Verghese and few other persons in civilian clothes of the management of St. Stephens' Hospital, whom I can recognize from attacking us .....
On seeing the police force, the entire security staff of St. Stephens, Hospital and their other officials in civilian clothes ran away towards the Hospital ........
Now, I have come to know about the full names of the officials reference to whom was made by me in my earlier statements dated 24/25-8-92 night and names of some of the security guards. The said names are as follows :
(1) Mr. P. U. Verghese (Security in charge), (2) S. K. Mukherjee (G.S.), (3) Mr. C. P. Mathew (receptionist), (4) Mr. Amar Singh, Security Inspector who was having three stars, (5) John Massey (Personal Officer), (6) Bhanwar Singh, Security Guard, (7) Bajrang Singh, Security Guard, (8) Agar Singh, (9) Two other Bhawar Singh, (10) Hanuman, (11) A. R. Mathew, driver, (12) Thakur Singh, Inspector, (13) Sebastian, Inspector, (14) Hukam Singh, (15) Pale Ram, (16) Aman Singh, (17) Rome Gurang, (18) Chaggan Singh, all guards and several others whom I can recognise on seeing.
The entire security staff of about 25 to 30 persons in their uniform led by above mentioned officials in civilian clothes had entered after demolishing the purdah wall between servant quarters of 4, Bouleward Road and St. Stephens' Hospital.
We both were in the state of extreme shock and alarm, I have, however, mentioned in my statement under S. 161, Cr.P.C. dt. 24/25-8-92 that there were officials of the Hospital besides security guard and that attack was the result of a conspiracy and planning by the management of St. Stephens' Hospital. Now, I, state that it was a conspiracy and planning well organized by the management comprising Dr. J. Jacob (Director, St. Stephen's Hospital), Mr. S. K. Mukherjee (Retired IPS G.S. St. Stephens), P. U. Verghese (Security Officer), Mr. John Massey (Personal Officer), Mr. Amar Singh (Security Inspector), Mr. C. P. Mathew (receptionist)/official of St. Stephens' Hospital and the entire private duly uniformed security force of St. Stephens' Hospital."
24. In the statement of Dilip Singh (Constable) recorded by the police on August 25, 1992 it was alleged that at the time of the incident Verghese had stated that he was acting on the orders of his Director.
25. On the basis of the above material learned counsel for the respondent contended that prima facie it appears that petitioner No. 2, Mr. S. K. Mukherji, petitioner No. 3, Mr. John Massey, petitioner No. 4, and Mr. C. P. Mathews were part of the unlawful assembly and the attack was the result of a conspiracy and planning by the management of St. Stephens' Hospital, i.e., the petitioner No. 1, Dr. Jacob and petitioners 2-4.
26. Learned counsel for the petitioners, however, submitted that the statement of Mr. J. P. Singh dated September 20, 1992 was an afterthought and could not be relied upon for the purpose of summoning the petitioners. He also submitted that his first statement to the police under S. 161 recorded on August 25, 1992 made no allegations against the petitioners. The delay in levelling the allegations against the petitioners was significant and clearly shows that the same were fabricated subsequently, contended the learned counsel. In response to these submissions of the learned counsel for the petitioners, the learned counsel for the respondent pointed out from the statement of Mr. J. P. Singh that on the day when incident took place, he was perturbed and shocked. Learned counsel therefore contended that narration of each and every detail of the incident could not be expected from him as he was in a disturbed state of mind because of the incident. He submitted that soon thereafter on August 27, 1992 Mr. J. P. Singh in his complaint to the Registrar, High Court, a copy whereof was allegedly endorsed to Commissioner of police on August 29, 1992, clearly mentioned all the details of the incident including the names of and part played by the petitioners.
27. I have considered the respective submissions of the learned counsel for the parties. In so far as the petitioners 2 to 4 are concerned, there is a definite accusation against them of their presence at the time of the incident and their involvement in it. These allegations appear from the statement of Mr. J. P. Singh. Once the Magistrate, in exercise of his judicial discretion passes the summoning order against the accused on being satisfied from the material on record that a prima facie case exists against him, the High Court cannot interfere with the exercise of such discretion by the Magistrate or judge the merits and demerits of the case, unless the allegations accusations made against the accused were so absurd and inherently improbable on the face of the record that no reasonable person could ever conclude that there was ground to proceed against him. From the material on the basis of which summoning order has been issued against the petitioners 2 to 4, I do not find that the allegations against them to be ex facie absurd or inherently improbable. As regards the question of delay in naming the petitioner as architects of and participants in the crime is concerned, suffice it to say, that the explanation put forth by the learned counsel for the respondents in explaining the delay cannot be rejected at the threshold stage. Even the question of falsity or genuineness of the allegation levelled against the petitioners cannot be gone into in these proceedings. In any event, the question whether there was no sufficient ground to proceed against the petitioners 2 to 4 can be considered by the court of Session under section 227 of the Code of Criminal Procedure on committal of the case to it. The point raised by the learned counsel for the petitioners is also squarely covered by the decision in Hareram's case (supra) wherein it was held that at page 1689, of Cri LJ :-
"9. ........... The second point does not present any difficulty. It is well settled that once the Magistrate has after satisfying himself prima facie that there is sufficient material for proceeding against the accused issues process against him, the High Court cannot go into the matter in exercise of its revisional jurisdiction which is very limited. The following observations made in Smt. Nagawwa v. Veeranma Shivalingappa Konjalgi,
(supra) are apposite in this connection (at p. 1951).
"It is true that in coming to a decision as to whether a process would be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations that there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These consideration, in our opinion, are totally foreign to the scope and ambit of an inquiry under section 202 of the Code of Criminal Procedure".
10. Now as the Magistrate was restricted to finding out whether there was a prima facie case or not for proceeding against the accused and could not enter into detailed discussion of the merits or demerits of the case and the scope of the revisional jurisdiction was very limited the High Court could not in our opinion launch on a detailed and meticulous examination of the case on merits. As the High Court has clearly exceeded its jurisdiction in setting aside the order of the Sub-Divisional Magistrate, we cannot do otherwise than to allow the appeal. In the result the appeal succeeds and the judgment and order of the High Court is set aside.
11. Before parting with the case we wish to observe that the grievance of the respondents that there is no material to support the faked and cooked up story against them is taken care of (as held in Sanjay Gandhi v. Union of India, to which one
of us (Jaswant Singh, J.) was a party) by Section 227 of the Code of Criminal Procedure 1973 under which it is open to the court of Session on committal of the case to it to discharge the accused if upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the parties, it considers that there is no sufficient ground for proceeding against the accused. The respondents would therefore be at liberty to invoke the provisions of Section 227 of the Code on the case being committed to the court of Session."
28. Thus in view of the above discussion and having regard to the decision of the Supreme Court in Hare Ram's case (supra), I am not inclined to interfere with the order passed by the learned Metropolitan Magistrate, qua petitioners 2 to 4 against whom the allegation is that they were members of the unlawful assembly, even though I do not accept that part of his reasoning by virtue of which he came to the conclusion that he was empowered to pass the summoning order against the petitioners under section 319 of the Code of Criminal Procedure. I would advert to that part of the order of the learned Metropolitan Magistrate later in this judgment.
29. In so far as the first petitioner is concerned, it is not the case of the respondent that the petitioner was present on the spot at the time of the incident. Therefore, it appears that he was not a part of the unlawful assembly. That being so, the learned metropolitan Magistrate could not pass the summoning order against him for the offences under section 147, 148 and 149 as alleged to have been committed by the accused against whom the chargesheet was filed by the police under section 173 of the Code of Criminal Procedure. Therefore, the order of the learned Metropolitan Magistrate qua the first petitioner is set aside. The learned Magistrate is however, directed to consider the question of summoning the first petitioner afresh and pass appropriate orders in the light of the material on record.
30. I may also dispose of another submission of the learned counsel for the petitioner that the Metropolitan Magistrate who passed the impugned order was lower in hierarchy than Mr. J. P. Singh, ADJ and he should have committed only those accused persons who were sent up by the police and should have left the matter of summoning the petitioners to the court of session. The submission of the learned counsel needs only to be noticed to be rejected. Judicial disinterestedness of the learned Metropolitan Magistrate passing the impugned order cannot be questioned merely on the ground that in the hierarchical judicial set up he was lower to complainant's husband. If the argument of the learned counsel is accepted then no trial of an accused could be held by a judicial officer when complainant or victim is also a judicial officer higher in hierarchy than the former. If this is the position, who will try such cases. How justice will then be administered ? A Magistrate is an instrumentality of justice, acting in the performance of his prescribed statutory duties is wholly independent and there is no ground to assume that he would stoop so low in performance of his duty that he will not act dispassiontely or fearlessly merely because a judicial officer higher in rank and seniority is connected with the case before him.
31. Before parting with the case, it needs to be pointed out that the learned Metropolitan Magistrate was not right in holding that he was empowered to pass the summoning order under section 319 of the Code of Criminal Procedure without recording evidence in the matter. Section 319 can be made use of only when during the course of the inquiry or trial of an offence, some evidence is recorded and from that evidence it appears that any person, not being the accused, has committed an offence for which such person could be tried together with the accused persons. The court in those circumstances may proceed against such person and summon him to appear before it in connection with the commission of an offence. Admittedly, in this case neither any evidence could be recorded by the Metropolitan Magistrate as the case is exclusively friable by the Court of Session nor as a matter of fact any evidence was recorded by him. The opinion of the learned Magistrate that the term evidence as used in Section 319 of Code of Criminal Procedure includes evidence collected during investigation and does not mean evidence recorded during the trial, is not correct, in view of the law laid down in Kishnu's case (supra), where it has been held that the word 'evidence' occurring in Section 319 means evidence recorded during the trial or any, inquiry by the court. But the fact that the learned Magistrate has wrongly decided that he was empowered under section 319 to summon the petitioner, will not effect the outcome of the case as dehors Section 319 the Magistrate has the power to summon the petitioners.
32. In view of the above discussion, the summoning order qua petitioners 2 to 4 is maintained while the same is set aside qua petitioner No. 1 with the direction that the learned Metropolitan Magistrate will consider the question of summoning petitioner No. 1 afresh in the light of the material on record.
33. Accordingly, the petition succeeds to the extent above and is accordingly disposed of.
34. Order accordingly.