Ltd. Vs. State of Delhi & Anr  Insc 390 (14 August 2001)
M.B.Shah Shah, J.
Special Leave Petition (crl.) 620 of 2001
...Appellant Versus State of Delhi &
Another ...Respondents AND TRANSFERRED CASE (Crl.) No.1/2001.
Pilla ...Appellant Versus Union of India & Others ...Respondents
granted in S.L.P. (crl.) No. 620 of 2001.
High Court of Delhi in Criminal Misc. (Main) No.1818 of 2000 vide judgment and
order dated 03.7.2000 arrived at the conclusion that "the Court was
totally unjustified in summoning the petitioner when the petitioner was not
shown in the column of accused persons in the charge sheet". Relying on
Section 319 Cr.P.C., the High Court held that such persons could be summoned by
the Court under Section 319 only after the evidence has been recorded. That
order is challenged in this appeal.
senior counsel, Dr. Singhvi, appearing for the appellant submitted that the
impugned order passed by the High Court ignored the provisions of Section 190 Cr.P.C.
and there was no question of referring to Section 319 Cr.P.C. at the stage. As
against this, learned senior counsel, Mr. R.K. Jain, appearing for respondent
no.2 supported the impugned order and submitted that in the charge-sheet respondent
no.2 was not shown as accused and his name appeared only in column no.2 and,
therefore, without there being any additional evidence on record, Magistrate
was not justified in issuing summons.
therefore, contended that the High Court rightly referred to Section 319 and
held that without there being any additional evidence respondent no.2 could not
be summoned as accused.
facts are-it is the say of the complainant-appellant that it is a public
limited company dealing in import and export business and is having its
registered office at Calcutta and branch office at New Delhi. Petitioner lodged FIR No.616/97 on
28.8.1997 at police station Kalkaji, New Delhi, against M/s Malabar Cashewnuts and Allied Products, having its office
at Quilon (Kerala) and its partners. During investigation, it was revealed that
respondent no.2 J. Rajmohan Pillai was the Managing Director of another sister
company known as M/s Pace International Company and two letter of credits given
by the complainant-appellant were transferred by one of the accused A. Suresh
Kumar to the Pace International Company. On this discovery, notice under
Section 160 Cr.P.C. was issued to J. Rajmohan Pillai by the police. Because of
the stay order issued by the High Court of Kerala it was not possible for the
police to interrogate respondent no.2 and to ascertain whether he was involved
in the conspiracy. He was, therefore, not joined as accused in the charge-sheet
submitted by the police, but his name was shown in column no.2, which is meant
for the accused who are not sent for the trial. It was also stated that accused
had cheated, misappropriated and caused wrongful loss to the complainant
company to the tune of Rs.2,10,60,000/-.
basis of the said charge sheet, the Metropolitan Magistrate on 3rd August, 1999
issued summons against all accused shown in the FIR for the offence under
Sections 420/406/120-B IPC.
next date of posting (20.12.1999), he also issued the summons to respondent
no.2. That part of the order was challenged by him by filing the aforesaid
petition before the High Court of Delhi.
view, from the facts stated above it is clear that at the stage of taking
cognizance of the offence, provisions of Section 190 Cr.P.C. would be
applicable. Section 190 inter alia provides that 'the Magistrate may take
cognizance of any offence upon a police report of such facts which constitute
an offence.' As per this provision, Magistrate takes cognizance of an offence
and not the offender. After taking cognizance of the offence, the Magistrate
under Section 204 Cr.P.C. is empowered to issue process to the accused. At the
stage of issuing process, it is for the Magistrate to decide whether process
should be issued against particular person/persons named in the charge sheet
and also not named therein. For that purpose, he is required to consider the
FIR and the statements recorded by the police officer and other documents
tendered along with charge sheet.
upon receipt of police report under Section 173 (2) Cr.P.C., the Magistrate is
entitled to take cognizance of an offence under Section 190(1)(b) even if the
police report is to the effect that no case is made out against the accused by
ignoring the conclusion arrived at by the investigating officer and
independently applying his mind to the facts emerging from the investigation by
taking into account the statement of the witnesses examined by the police. At
this stage, there is no question of application of Section 319 Cr.P.C. Similar
contention was negatived by this Court in Raghubans Dubey vs. State of Bihar
[(1967) 2 SCR 423] by holding thus:
our opinion, once cognizance has been taken by the Magistrate, he takes
cognizance of an offence and not the offenders; once he takes cognizance of an
offence it is his duty to find out who the offenders really are and once he
comes to the conclusion that apart from the persons sent up by the police some
other persons are involved, it is his duty to proceed against those persons.
summoning of the additional accused is part of the proceeding initiated by his
taking cognizance of an offence." Further, in the present case there is no
question of referring to the provisions of section 319 Cr.P.C. That provision
would come into operation in the course of any inquiry into or trial of an
offence. In the present case, neither the Magistrate was holding inquiry as
contemplated under section 2(g) Cr.P.C. nor the trial had started. He was
exercising his jurisdiction under section 190 of taking cognizance of an
offence and issuing process. There is no bar under section 190 Cr.P.C. that
once the process is issued against some accused, on the next date, the
Magistrate cannot issue process to some other person against whom there is some
material on record, but his name is not included as accused in the
result, the appeal is allowed, the impugned order passed by the High Court is
view of the aforesaid order, SLP (Crl.) No.1564-1565 of 2001 filed by A. Sasikanth
seeking quashing of the impugned order passed by the High Court of Delhi in
Criminal Misc. (Main) No.1818 of 2000 and T.C. (Crl.) No.1 of 2001, originally
filed by J. Rajmohan Pillai before the High Court of Kerala would also not
survive and stand disposed of accordingly.
trial court to proceed with the matter in accordance with law.