- (1.) THIS petition has been filed by the petitioner, who was summoned as a co-accused by a Special judge by invoking power under Section 319 cr. P. C. in a case pending against accused ashok Chawla, LDC, DDA, C-Block, Vikas sadan and Kamal Agnihotri, a private person, on the allegations that Ashok Chawla accepted a bribe of Rs. 2,500 from Kamal agnihotri and that Kamal Agnihotri had been accused of having offered that bribe. The allegations made against Ashok Chawla and Kamal Agnihotri in the complaint are as under: ". . . Inquiry at the spot have revealed that money being transacted between kamal Agnihotri and Ashok Kumar was being paid as bribe by former for accepting delivery of documents submitted by him earlier. " The accused Ashok Chawla is being tried for an offence under Section 13 (1) ( a) and (d) read with Section 13 (2) of the Prevention of Corruption Act, while Kamal agnihotri is being tried for the offence under Section 12 of the Prevention of Corruption Act.
(2.) IT has been submitted on behalf of the petitioner that by order dated 9. 10. 2002 the petitioner was summoned as co-accused in the present case by the learned Special judge on the ground that he is guilty of having acquired assets disproportionate to his business. The relevant portion of the order dated 13. 5. 05 passed by the Ld. Special Judge, whereby charges under Section 13 (l) (a) r/w Section 13 (2) of the Prevention of Corruption Act and under Section 13 (l) (e)r/w Section 13 (2) of the Prevention of Corruption Act are framed against the present petitioner, is reproduced hereunder: 4. Inspector Rajesh Kumar also carried out searches of office table drawer of cashier P. C. Kathuria, which led to recovery of Rs. 35,000 besides Rs. 4738 lying on the relevant page for 24. 7. 95 of the fee register on the table of the said cashier, while the said fee register reflected total collection for that day up to that page Rs. 4381. 5. The CBI filed a charge sheet against ashok Kumar and Kamal Agnihotri, the two accused who were caught while giving and accepting illegal gratification. After the examination of Inspector Rajesh Kumar, (PW2), it was revealed that during the surprise check, a sum of Rs. 35,000 was recovered from the drawer of P. C. Kathuria and further a sum of about Rs. 47007 were recovered from the cash register, while the collection for that day was much less. On this evidence, accused P. C. Kathuria was summoned by this Court by order dated 9. 10. 02. 6. The amount recovered from cashier was in excess of the collection of the registrar's Office on that day. Some chits were also found from the accused, which indicate that the accused was habitual of accepting gratification other than legal remuneration from persons who came to his office for getting documents registered. . 7. A prima - facie offence under Section 13 (l) (a) read with 13 (2) of PC Act is made our against the accused P. C. Kathuria. Further the accused was found in possession of amount in excess of daily official collection. The accused has no explanation for the possession of this excess amount and is, therefore, prima facie liable under Section 13 (1) (e) read with 13 (2) of the PC act. It is, therefore, ordered that charge under Section 13 (1 Ha) read with Section 13 (2) of the PC Act and under Section 13 (1) (e) read with 13 (2) of the PC Act be framed against the accused PC kathuria. Announced in open court. Dated 13. 5. 2005 (Dinesh Dayal)Special Judge Delhi
(3.) LEARNED counsel for the petitioner submitted that this order is illegal and is beyond the powers of the Ld. Special Judge which were available to him under Section 319 Cr. P. C and constitute gross abuse of the process of the Court. Section 319 of the cr. P. C, for the sake of reference, is reproduced hereunder: 319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the court although not trader arrest or upon a summon may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under sub-section (1) then: (a) The proceedings in respect of such person shall be commenced afresh, and witnesses reheard. (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. ;