Delhi High Court: Magistrate Cannot Review Own Order to Summon an Accused Placed in Column 12 Without New Evidence

New Delhi: In a significant ruling on criminal procedure, the Delhi High Court has held that a Magistrate, having once taken cognizance of a chargesheet and chosen not to summon an individual placed in Column 12 (person not chargesheeted), cannot subsequently summon that person based on the same material. Such an act, the Court clarified, amounts to an impermissible review of a judicial order.

The bench of Justice Neena Bansal Krishna , while quashing a summoning order, reiterated that the power to summon an additional accused after the initial stage of cognizance can only be exercised under Section 319 of the Code of Criminal Procedure (Cr.P.C.) once evidence is recorded during the trial.

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Background of the Case

The case originated from an FIR lodged in 2011 by Ramesh Bhatia, an NRI, who alleged he was cheated of approximately ₹2 crore in a real estate deal. The FIR named Suresh Shrimali, Bijender Agarwal, and the petitioner, Anil Singh, as accused under Sections 406 (criminal breach of trust), 420 (cheating), and 120B (criminal conspiracy) of the IPC.

After a thorough investigation, the Economic Offences Wing (EOW) of the Delhi Police filed a chargesheet in 2015. While Shrimali and Agarwal were arrayed as accused in Column 11, the investigating officer concluded there was insufficient evidence against Anil Singh and placed him in Column 12.

On September 19, 2015, the Chief Metropolitan Magistrate (CMM) took cognizance of the chargesheet and issued summons only to the two accused in Column 11. However, nearly two years later, on April 22, 2017, a successor CMM, while hearing the bail applications of the co-accused, re-examined the same chargesheet and issued summons to Anil Singh, finding a prima facie case against him. It was this summoning order that Singh challenged before the High Court under Section 482 Cr.P.C.

Arguments Presented

The petitioner, Anil Singh, argued that the impugned summoning order was illegal as it effectively amounted to a review or recall of the predecessor court's order. He contended that once the first CMM had applied its mind and chosen not to summon him, the successor CMM could not revisit that decision without any new material or evidence coming on record. This, he asserted, was a procedural overreach not permitted by law.

The State maintained that the Magistrate has the power to disagree with the investigating agency's conclusions and can summon any person if the material on record discloses their involvement in the offence.

Court's Analysis and Legal Precedents

Justice Krishna meticulously analyzed the procedural framework governing the summoning of accused persons. The Court affirmed that while a Magistrate is not bound by the police's conclusions and can summon an individual from Column 12 at the time of taking cognizance, this must be a one-time exercise based on the initial application of mind.

The judgment highlighted a crucial distinction: > "Once the Ld. CMM while taking cognizance on 19.09.2015 did not deem it proper to summon the Petitioner, Anil Singh who was placed in Column No.12, the Ld. CMM subsequently after two years could not have summoned him as the cognizance of a case cannot take place twice, since doing so would tantamount to taking the cognizance twice or the review of earlier Order, which the Law does not recognize."

The Court drew heavily upon established legal principles, citing the Constitution Bench judgment in Hardeep Singh vs. State of Punjab (2014) . The High Court reiterated the principle laid down by the Supreme Court: > "...the power under Section 319 Cr.P.C can only be exercised ‘on evidence recorded in the Court and not the material gather at the investigation stage, which has already been tested at the stage of taking cognizance under Section 190 Cr.P.C and the issue of process under 204 Cr.P.C’."

The bench further referenced the Supreme Court's recent decision in Omi @ Omkar Rathore vs. State of Madhya Pradesh (2025) , which reaffirmed that while a court can summon a person not named in the chargesheet at the initial stage, once that stage has passed, the power under Section 319 Cr.P.C. is triggered only when fresh evidence surfaces during the trial.

Final Decision and Its Implications

Concluding that the CMM's order was a "complete disregard" of the earlier order of cognizance, the High Court set it aside. Justice Krishna noted that the order was "bad in law as it amounts to a review of the earlier Order of Cognizance which is beyond the jurisdiction of the MM."

The Court, however, provided a crucial clarification. The ruling does not permanently absolve the petitioner. It was made clear that this order does not impinge on the trial court's right to summon the petitioner under Section 319 Cr.P.C. if sufficient and cogent evidence emerges against him during the prosecution's case.

This judgment serves as a vital reminder of the procedural sanctity in criminal law, reinforcing the bar on judicial review by courts of the same tier and demarcating the distinct stages for summoning an accused based on police investigation versus evidence led in court.