S. 319 CrPC | Cognizance Taken Without Summoning Column-12 Suspect Bars Later Summons On Same Material: Delhi High Court
Isabella Mariam
The High Court of Delhi Single Bench of Justice Neena Bansal Krishna held that once cognizance is taken and a person shown as a suspect in Column No.12 of the chargesheet is not summoned, the Magistrate cannot later issue summons in the absence of fresh evidentiary material. The case concerned allegations of cheating and breach of trust arising from a property investment arrangement in which funds were transferred for an intended land purchase. The Court set aside the order summoning the individual, noting that doing so without new evidence would amount to an unauthorized review of the earlier cognizance order. It clarified that the trial court may summon the person at a later stage only if evidence during trial justifies such action.
The matter arose from a complaint alleging that the complainant was induced by three individuals to invest in a land purchase in India. It was stated that the complainant, residing abroad, was introduced to the proposed sellers and was advised to include one individual as a joint buyer to facilitate the transaction and handle local formalities. An agreement to sell was executed, and substantial funds were subsequently transferred through various bank accounts on the instructions of the individuals involved. The complainant also executed a power of attorney authorizing one of them to act on his behalf for the transaction.
The complainant asserted that despite the payments made, the promised sale deed was not executed and communication with the concerned individuals became difficult. During investigation, statements were recorded, bank account details were obtained, and receipts allegedly issued for payments were verified through witnesses. The investigation found that while funds had been transferred and some land had been purchased in the name of a company connected to the parties, the complainant was neither inducted as a director of the company nor refunded his money.
The police filed a chargesheet under Sections 406, 420, and 120B IPC against two individuals, placing the third in Column No.12 after concluding that no sufficient evidence had emerged against him.
The Court began by examining whether a Magistrate may summon an individual placed in Column No.12 after cognizance has already been taken. It recorded that “the core question which arises is whether once the cognizance has been taken and the accused placed in Column No.12 is not summoned, can he be summoned subsequently without there being any additional evidence on record.” The Court stated that the Magistrate is empowered to assess the chargesheet independently but noted that “some cogent reasons must be reflected in the Summoning Order to explain why the learned CMM does not concur with the finding of the I.O in placing an Accused in Column No.12.”
The Court observed that when an accused placed in Column No.12 is not summoned at the time of cognizance, the record indicates that the Magistrate has consciously excluded that person. It referred to earlier decisions and stated that “if the person placed in Column No.12 is not summoned at the time of taking cognizance, then subsequent summoning by the Successor Court with no additional evidence, tantamount to review of the earlier Order which is bad in law.”
Addressing the scope of Section 319 CrPC, the Court recorded that “the Court… would be justified to summon an accused who is placed in Column No.12, only if there is subsequently some material either by way of subsequent investigations or something emerges in the evidence recorded during the trial.” It cited the Constitution Bench in Hardeep Singh and stated that the power under Section 319 can be exercised only “on evidence recorded in the Court and not the material gathered at the investigation stage.”
The Court further noted that the stage for exercising power under Section 319 arises only when evidence surfaces during trial, recording that “the Trial Court… can add such accused only on the basis of evidence adduced before it and not on the basis of the material available in the Charge-Sheet or the Case Diary.”
After reviewing the material, the Court stated that “once the Ld. CMM while taking cognizance… did not deem it proper to summon the Petitioner… the Ld. CMM subsequently after two years could not have summoned him as the cognizance of a case cannot take place twice.” It concluded that “this Order of the Ld. CMM… is in complete disregard of the earlier Order of Cognizance… It is 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 directed that “the Impugned Order dated 22.04.2017 against the Petitioner is hereby, set aside. This Order does not impinge on the right of the Ld. CMM to summon the Petitioner subsequently in case the sufficient evidence is brought on record by the Prosecution during the trial.”
“The Petition is accordingly, allowed and the Impugned Order dated 22.04.2017 against the Petitioner is set aside. The Petition along with the pending Applications stand disposed of.”
Advocates Representing The Parties
For the Petitioner: Mr. Amit Khemka, Ms. Himani Singh and Ms. Tanvi Agrawal, Advocates
For the Respondent: Mr. Shoaib Haider, APP for the State
Case Title: Anil Singh v. State
Neutral Citation: 2025: DHC:9636
Case Number: CRL.M.C. 2911/2017
Bench: Justice Neena Bansal Krishna
