Delhi High Court (August 7, 2001) 2001 (TLS)125287 2002-DLT-95-760 :: 2001-AD (Del)-6-480 UMESH GOGIA Vs. state of delhi K. S. Gupta ( 1 ) THIS order will govern the disposal of Crl. M. (M) Nos. 1488/2001 filed by Umesh Gogia and Crl. M. (M) No. 1489/2001 filed by Jagdish Chand gogia. ( 2 ) IN both the petitions filed under Section 482 CRIMINAL PROCEDURE CODE, the petitioners seek setting aside of the order dated 9/2/2001 passed by an addl. Sessions Judge dismissing Cri. R. Nos. 1/2001 and 2/2001 filed against the summoning order dated 12/7/1999. Without referring to the allegations made in FIR No. 107/99, it may be noticed that after completing investigation in the case, the police submitted charge sheet under Sections 420/506/120-B INDIAN PENAL CODE against Jagdish Chand Wadhwa and smt. Tripta Wadhwa. Names of both the petitioners had been shown in the charge sheet in coloumn No. 2. By aforesaid order dated 12/7/1999. Metropolitan Magistrate having jurisdiction over PS Karol Bagh took cognizance against the two petitioners holding that there were specific allegations against them, of conspiracy alongwith said Jagdish Chand wadhwa and Tripta Wadhwa, co-accused. Dis-satisfied with this order, the petitioners filed said revision petitions which were dismissed. ( 3 ) SHORT submission advanced by Sh. S. S. Sobti for petitioners was that the petitioners whose names were shown in coloumn No. 2 in charge sheet, could have been summoned as accused persons only under section 319 CRIMINAL PROCEDURE CODE on the strength of evidence, if any, during trial and by the time order dated 12/7/1999 came to be passed even the charge had not boon framed. Reliance was placed on the decisions In Kanjit singh Vs. State -of Punjab. (1998) 7 SCC 149 , Joginder Sinah and Anr. Vs. State of Punjab and Anr. . 1979 SCC (Cri) 295 and Raj Kishore Prasad vs. State of Bihar and Anr. . 1996 IV AD SC 184. Submission is, however, without any merit. Joginder Shah s case was considered in Ranjit Sindh s case and in the latter decision it was held that the power to array a new person as an accused under Section 319 CRIMINAL PROCEDURE CODE by a Court of Session cannot be invoked at a stage prior to collecting evidence during trial in the case. Joginder Shah s case was considered in Ranjit Sindh s case and in the latter decision it was held that the power to array a new person as an accused under Section 319 CRIMINAL PROCEDURE CODE by a Court of Session cannot be invoked at a stage prior to collecting evidence during trial in the case. In Rai Kishore Prasad s case (supra), it was held that a Magistrate while acting under Section 209 CRIMINAL PROCEDURE CODE cannot associate another person as accused in exercise of power under Section 319 Cr,p. C. It may be noticed that the offences for which cognizance has been taken against the petitioners are triable by a Metropolitan Magistrate and none of the said three decisions have any relevance on the issue on hand which is directly covered by a decision of the Supreme Court in Abhinandan Jha and others Vs. Dinesh Mishra. AIR 1968 SC 117 . Question which arose for consideration in this decision was that whether a Magistrate could direct the police to submit a charge sheet, when the police, after investigation into a cognizable offence^ had submitted a final report, under Section 173 criminal PROCEDURE CODE While dealing with that question in para No. 17 at page 123 of the report, it was held:- "there is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under Section 190 (1) (c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190 (1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. " ( 4 ) POWER to take cognizance under Section 190 (1) (c) by a Magistrate is independent of the power under Section 319 CRIMINAL PROCEDURE CODE Metropolitan magistrate seems to have taken cognizance against the petitioners under section 190 (1) (c) CRIMINAL PROCEDURE CODE by the aforesaid order dated 12/7/1999. ( 5 ) THUS, no interference is called for in the matter under Section 482 CRIMINAL PROCEDURE CODE which power is to be exercised sparingly and with circumspection. --- *** --- .