A Magistrate can summon additional accused after taking cognizance of an offence, provided the trial has not started, under CrPC.

1. This petition has been filed under S.482 of the CrPC for setting aside the order of a Metropolitan Magistrate dated 9-1-2002 by which she had taken cognizance of the offence under S.323/394/397 read with S.506 (II) IPC against the petitioner Jitender Singh alias Motu, Inder Pal Singh alias Billo and Harvinder Pal Singh alias Meena to stand trial in the case along with co - accused.

2. The facts giving rise to this petition, briefly stated, are that a case FIR No. 295/95 was registered at P.S. Inderpuri on 19-11-1995 for offences under S.394 and S.506 IPC. This case was registered on the complaint of one Sanjay. The complainant alleged in the FIR that he was a student and on 19-11-1995 at about 9 AM he went out to buy sweets at Aggarwal Sweets, Main Bazar, Inderpuri. He met four boys Kaku (accused Gurvinder Pal Singh), Billo (Inder Pal Singh), Motu (Jitender Singh) and Meena (Harvinder Pal Singh) who were known to him from before as they also resided in the same locality. They started giving fist blows and kick to him inside the shop. Billo i.e. the petitioner No. 2 Inder Pal Singh snatched a chain which he was wearing around his neck. He suffered injuries at his face. Jitender Singh petitioner No. 1 snatched away his black purse from the pocket of his shirt. The purse contained his driving licence, some visiting cards and Rs. 3000/-. He started shouting whereupon the petitioner No. 2 Inder Pal Singh threatened that he would not spare him and he also gave threats to kill him pointing a country made pistol at him (complainant). The complainant further alleged that he however managed to escape and reached the car which was driven by his uncle Rajiv and went back home.

3. After the investigation the police submitted a challan for the prosecution of Gurvinder Pal Singh, accused for offence under S.341 and S.323 IPC. In the charge - sheet it was alleged that though the case was registered under S.394 and S.506 IPC but during the investigation the statements of the witnesses were recorded which disclosed the commission of the offence under S.341 and S.323 IPC so the offence was altered on 15-12-1995 from 394 and 506 IPC to 341 and 323 IPC against only Gurvinder Pal Singh. It was further alleged that the injuries of the complainant Sanjay were simple and Sanjay was also asked to produce the witnesses. The accused was released on bail.

4. After the charge - sheet was filed the learned Magistrate took cognizance on 16-2-1995 of the offence under S.394 and S.506 IPC and issued summons to the accused (Gurvinder Pal Singh) for 7-6-1996. The said accused appeared before the Court and was granted regular bail. Thereafter the case was adjourned for hearing on the question of charge on 24-10-1996, 21-1-1997 and 9-1-2002. The learned Magistrate considered the case and passed the following order which is impugned in this petition.
"I have considered the facts and circumstances of the present case. Particularly, the complaint lodged by complainant Sanjay Kumar s/o Nageshwar Pandey. I have also gone through the explanation filed by the IO. It appears that IO has not fairly investigated the present case and therefore, before proceeding further, I order that other accused named in the complaint should also be summoned as they are equally involved during the commission of the offence. The case has also been registered for the lesser offence whereas according to the statement of complainant, a clear case of robbery as punishable under S.323/394/397 along with S.506 (II) IPC is made out. IO is present and is directed to produce the remaining three accused named by the complainant for 8-3-2002."
The petitioners who were not se