The admissibility of statements under Section 161 Cr.P.C. and the timing of the application under Section 319 Cr.P.C. for summoning the accused.

Amar Dutt, J.

1. Petitioner-Sanjay Dalmia is aggrieved by an order passed by the Special Judicial Magistrate, Ist Class, Ambala, under Section 319 of the Code of Criminal Procedure summoning him to stand his trial along with eight other accused challaned by the Central Bureau of Investigation under Sections 167, 193, 211, 420, 465 and 471 read with Section 120-B IPC.

2. The facts leading to the filing of the challan are not in dispute. Admittedly, on 30th July, 1994, a report is stated to have been lodged by one Sarvjeet Chauhan, resident of House No. 1273, Pocket-B, Hari Nagar, Delhi- 110064, at Police Station Sahibabad against one Uma Shankar Sitani. On the basis of the said report, Criminal Case bearing FIR No. 656 of 1994, under Sections 504/506 IPC was registered in the aforesaid police station. No step was, however, taken in relation to the investigation of the said matter till September 12, 1994, on which date the Investigating Officer Shri R.K. Singh, Sub-Inspector of Police, allegedly recorded the statement of the complainant and thereafter on 16th September, 1994, non-bailable warrant was issued for the arrest of Uma Shankar Sitani by the Chief Judicial Magistrate, Ghaziabad (UP). A police party raided the house of Uma Shankar Sitani i.e. No. 115-A, Sainik Farm, Delhi on October 5, 1994 to arrest him. He was not found present at home and on coming to know of this raid, the aforesaid Uma Shankar Sitani filed Criminal Writ Petition No. 325 of 1994 before the Apex Court. According to him, the non-bailable warrant was obtained by the police authority of District Ghaziabad in Uttar Pradesh for arrest of the petitioner on account of business rivalry.

3. The Apex Court doubted the existence of complainant Sarvjeet Chauhan and vide order dated 5.1.1995 directed the Commissioner of Police, Delhi to inform the Court after getting the matter verified as to (a) whether there is House No. 1273 in existence in Pocket-B, Hari Nagar, New Delhi (b) whether Sarvjeet Chauhan resides there, and (c) to produce the aforesaid person in Court.

4. In pursuance of the aforesaid direction, Shri Alok Verma, Deputy Commissioner of Police, South District, Delhi, filed an affidavit stating (a) that no such address was in existence and (b) that Sarvjeet Chauhan cannot be said to be residing at the aforesaid address. On the basis of this report, the Apex Court came to a conclusion which would indicate that the report which is said to have been lodged at Police Station, Sahibabad, on the basis of which, Criminal Case No. 656/94 has been registered at the said Police Station against the petitioner is by a non-available person and is a false one. Before the Apex Court, Uma Shankar Satani had also relied upon a report of J.P. Muna, Inspector of Police, P.P. Sainik Farm, Police Station Ambedkar Nagar, Delhi in the Daily Diary dated 5th October, 1994, wherein it was recorded that on enquiry, he has come to know that Sanjay Dalmia has filed a complaint in the Chief Judicial Magistrates Court at Ghaziabad.

5. Faced with this situation, their Lordships of the Supreme Court, passed the following order :-

"We, therefore, consider it appropriate to direct the Director of Central Bureau of Investigation to nominate a Senior Officer to investigate into the circumstances under which the criminal case No. 656/94 was registered under Sections 504/506 IPC at Police Station Sahibabad and the person or persons responsible for having the said case registered against the petitioner in order to have him arrested in connection with the said case. The report of such investigation may be submitted to this Court by April 30, 1995. Case Diary of Criminal Case No. 656/94 is with the Registry of this Court. It will be open to the officer conducting the investigation to inspect the said Case Diary as well as the other record. The Registrar (Judicial) shall permit him such investigation and he may also be allowed to take zerox copy of papers from the case Diary and the rec