CRL.M.C.2040/2010 Page 1 33 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2040/2010 SUNAIR HOTELS LTD ..... Petitioner Through: Mr. Vijay Aggarwal, Adv. versus STATE & ANR ..... Respondents Through: Mr. Arvind Kr. Gupta, APP for the State. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 04.06.2010 1. This petition under Section 482 and 483 of the Code of Criminal Procedure, 1973 impugns the order dated 27th April, 2010 passed by the learned ACMM, which reads :- “Present Complainant with P.C. Singal and Sh. Mohit Mathur Advocate. Accused Sudhir Gupta on bail. Sh. Vijay Aggarwal Advocate for accused S.P.Gupta, Kaveen Gupta, Vipul Gupta and M/s Sunair Hotels Ltd. Ld. Sh. Aggarwala has produced copy of the order passed by Hon‟ble High court on 04.03.2010 and submits that this Court should consider its arguments on the proprietary for issuance of the summoning oeder etc. He submits that the case of Adalat Prashad Vs. Roop Lal Jindal is not applicable, in view of the specific directions of the Hon‟ble High Court in order dated 04.03.2010 and the opportunity to his client to CRL.M.C.2040/2010 Page 2 raise these points, at this stage, I do not find anything in the order of the Hon‟ble High Court which keeps this court out of the purview of law emphasized in „ Adalat Prashad Vs. Roop Lal Jindal the arguments regarding in proprietary and non availability of summoning can be addressed by Sh. Aggarwala at appropriate stage. At this stage this court has no power to recall the order of summoning. Part arguments on application u/s 173(8) Cr.P.C heard. It is already lunch time. Put up on 14.05.10 at 12 noon ( Ajay Pandey ) ACMM-01/New Delhi 27/04/2010” 2. In view of the decision of the Adalat Parshad Vs. Roop Lal Jindal,(2004) 7 SCC 338, the trial court has no power to recall the summoning order. This is the correct position in law. 3. Learned counsel for the petitioner submits that he should be permitted to challenge the summoning order before this Court or the Metropolitan Magistrate should reconsider and re-examine the summoning order. 4. The petitioner and others had earlier filed criminal M.C. Nos.911/2003, 1992/2006, 2142/2007, 2229/2007, 1988/2008, 64/2006, W.P.(Crl.) Nos.498/2005, 208/2006, 1191/2006 and 1210/2006 before this Court challenging the summoning order. These petitions remained pending in the High Court till 4th March, 2010. The petitioner has filed copy of order dated 6th October, 2009 passed in these petitions. The said order records the five specific contentions and legal issues raised by the petitioner including the contention that the company has been summoned as an accused inspite of the fact that the company cannot be presumed to have mens rea and the summoning order was a cyclostyled one. It does not reflect application of mind. Inspite of these legal contentions on 4th March, 2010 these petitions were disposed of by the High Court. The said order reads:- CRL.M.C.2040/2010 Page 3 “04.03.2010 Present:- Mr. K.K. Sud, Sr. Adv., Mr. Atul Sharma, Mr. Nitesh Jain, Advocates for the Petitioners. Mr. Mohit Mathur, Mr. Gaurav Singh, Mr. Ashok Kumar Sharma, Ms. Bina Gupta, Advocates for respondents. Crl. M.C. 911/2003 1 This is a part heard matter. However, today learned counsel for the petitioners, on instructions, submits that the petitioners do not want this matter to be disposed of on merits and seeks liberty to raise all the points which have been raised before this Court in the Trial Court at an appropriate stage/ at the stage of hearing arguments on charge. However, they seek protection from arrest and from personal appearance which orders stands granted in their favour for the last more than five years. 2 Learned counsel for the respondents, Mr. Mohit Mathur has no objection to the prayer made on behalf of the petitioner. 3 Taking all these facts into consideration including the factum of pendency of the case for a period of more than five years and taking into consideration that ultimately it is for the trial Court to decide as to whether a charge is to be framed or not in the aforesaid case against the petitioner and to further decide whether the case should proceed or not in view of some of the objections raised on behalf of the petitioner about the propriety of issuance of summoning order etc., it would be appropriate to grant liberty to the petitioners to raise all the issues which have been raised in this petition before this Court at the appropriate stage/stage of framing of charge before the concerned Court. 4 Thus, the said Court is directed to deal with all the issues which have been raised before this Court in this petition at the appropriate stage/at the stage of framing of charge and also to dispose of pending applications before it. 5 The petitioners to appear before the concerned Court/trial Court on 26.03.2010. 6 The petitioners shall also be released on bail on the first date of their appearance which shall be on or before 26th March, 2010 on furnishing bail bonds in the sum of Rs.25,000/- each with one surety each in the like amount to the satisfaction of the concerned court/trial Court subject to the condition that they shall appear as and when required by the Court concerned and would join the investigation if so required by the investigating agency and would not delay the matter. The petitioners shall also be exempted from personal appearance on an application moved by them through duly authorized counsel CRL.M.C.2040/2010 Page 4 unless and until they are required by the Court for any purpose. The petitioners shall not leave the country without the permission of the court concerned and would not delay the trial of the case. 7 With these observations, the petition is disposed of. 8 All pending applications shall also stand disposed of. However, the interim order passed in various applications would remain in operation till 26.03.2010. 9 The trial Court/investigating agency will proceed from the stage where the case is pending subject to the aforesaid directions. 10 A copy of the order be sent to the concerned Court/trial Court.” (emphasis supplied) 5. It is clear from paragraph Nos. 1 and 3 of the aforesaid order that the petitioner gave up their right to challenge to the summoning order in the said petitions with liberty to raise all points and issues at any appropriate stage/at the stage of hearing arguments on charge. It is not possible to accept the contention of the petitioner that appropriate stage meant that the trial court has to re- examine the summoning order itself or that the summoning order was set aside. The learned Court did not and has not set aside the summoning order vide order dated 4th March, 2010. The words „at an appropriate stage‟ means at a stage as permitted and allowed as per law and as per the decision in the case of Adalat Parshad (Supra). It was not the intention of the court and no right was given to the petitioner to challenge the summoning order before the trial court. The contention that the Metropolitan Magistrate should review the summoning order is legally untenable, in view of the decision in Adalat Parshad (Supra). 6. At this stage the Learned Counsel for the petitioner states that they should be permitted to question and to challenge the summoning order which was passed on 18.1.2003 on merits. I do not think this should be permitted. As noticed above, the summoning order was challenged in petitions which had remained pending in this court from 2003/2006/2007 till 04.03.2010. The petitioners then withdrew these petitions as pointed out above. It will not be a proper to allow the petitioner to once again raise the same questions after they CRL.M.C.2040/2010 Page 5 had withdrawn the petitions, which had remained pending in the High Court for 3-6 years. In these circumstances the petition is dismissed. 7. Observations made in this order are for the disposal of this writ petition and will not be construed as observations on merits, binding on the trial court. SANJIV KHANNA, J. JUNE 04, 2010 J