2001 JTR(SC) 1093
2001 AIR(SC) 2747 ; 2001 AIR(SCW) 3017 ; 2001 3 BBCJ(SC) 109 ; 2001 4 Crimes(SC) 124 ; 2001 CrLJ 4173 ; 2001 3 ILR(Ker) 369 ; 2001 2 JCC 101 ; 2001 2 JLJR(SC) 875 ; 2001 6 JT 405 ; 2001 2 KLJ(NOC) 64 ; 2001 3 KLT(SN) 112 ; 2001 3 RCR(Cri) 826 ; 2001 5 Scale 224 ; 2001 6 SCC 670 ; 2001 SCC(Cri) 1205 ; 2001 2 UJ 1349 ; 2001 6 Supreme 85
2001(6) Supreme 85
SUPREME COURT OF INDIA
(From Delhi High Court)
M.B. Shah & S.N. Phukan, JJ.
M/s. SWIL Ltd. -Appellant
versus
State of Delhi and Anr. -Respondents
Criminal Appeal No. 820 of 2001
(Arising out of SLP (Crl.) No. 620 of 2001)
With
Special Leave Petition (Crl.) No. 1564-1565 of 2001
And
Transferred Case (Crl.) No. 1 of 2001 .
Decided on 14-8-2001
Counsel for the Parties :
For the Appellant : Dr. A.M. Singhvi, Sr. Advocate, Mr. Surya Kant, Mr. P.K. Bansal, Mr. S.B. Sunita Rao, Ms. Malini Poduval, Ms. Lansinglu Rongmei Advocates.
For the Respondents : Mr. R.K. Jain, Sr. Advocate, Mr. Y.N. Bhardwaj, Ms. Manu Beri, Mr. Yash Pal Dhingra, Mr. B.A. Mohanti, Ms. Neera Gupta, Mr. Avatar Singh Rawat, and Mr. D.S. Mehra, Advocates.
IMPORTANT POINT
There is no bar under Section 190 Cr.P.C. 1973 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 Col. 1 in the charge sheet.
(A) The provisions of Section 190 Cr.P.C. govern the cognizance of offences by a Magistrate, requiring an independent assessment of a police report to determine whether an offence is made out, irrespective of the investigating officer's conclusions. Once cognizance is taken, Section 204 Cr.P.C. empowers the Magistrate to issue process to any person found involved on the basis of the materials on record, including those not named in the charge sheet. The provisions of Section 319 Cr.P.C. are not applicable at the stage of taking cognizance or issuing process, as they pertain to a subsequent stage of inquiry or trial. The impugned order erred in invoking Section 319 to bar the addition of a person whose name appeared in the charge sheet column for accused not sent for trial, when the Magistrate was exercising jurisdiction under Section 190 to issue summons based on the case materials.
(B) The core legal principles are that a Magistrate takes cognizance of an offence and not the offender; the stage of issuing process is distinct from trial; and additional persons may be summoned if there is material on record, without being formally named in the charge sheet. The remedy under Section 319 Cr.P.C. is not available at the stage of taking cognizance or issuing process.
Facts of the case:
A public limited company filed a complaint alleging fraud involving the misuse of letter of credit, leading to a FIR. During investigation, a person not named as an accused in the charge sheet was summoned based on material on record. The High Court held that summoning was not permissible without additional evidence, relying on Section 319 Cr.P.C., and quashed the summons.
Findings of Court:
The Supreme Court held that the High Court erred in applying Section 319 Cr.P.C., as the stage was one of taking cognizance and issuing process under Section 190 Cr.P.C. The court observed that once cognizance is taken, the Magistrate is entitled to summon any person who appears to be involved, including one whose name is in the charge sheet but not sent for trial, without the need for further evidence at that stage.
Issues:
Whether a person whose name appears in the charge sheet but is not sent for trial can be summoned by the Magistrate at the stage of taking cognizance under Section 190 Cr.P.C.
Ratio Decidendi:
The authority to summon persons at the stage of taking cognizance flows from Section 190 Cr.P.C. and Section 204 Cr.P.C., and is not restricted by the charge sheet. Section 319 Cr.P.C. has no application at this stage, and the presence of a name in the charge sheet column for accused not sent for trial does not bar the issuance of summons.
Result:
The appeal is allowed, the impugned order is set aside, and the trial court is directed to proceed with the matter in accordance with law.
(A) The provisions of Section 190 Cr.P.C. govern the cognizance of offences by a Magistrate, requiring an independent assessment of a police report to determine whether an offence is made out, irrespective of the investigating officer's conclusions. Once cognizance is taken, Section 204 Cr.P.C. empowers the Magistrate to issue process to any person found involved on the basis of the materials on record, including those not named in the charge sheet. The provisions of Section 319 Cr.P.C. are not applicable at the stage of taking cognizance or issuing process, as they pertain to a subsequent stage of inquiry or trial. The impugned order erred in invoking Section 319 to bar the addition of a person whose name appeared in the charge sheet column for accused not sent for trial, when the Magistrate was exercising jurisdiction under Section 190 to issue summons based on the case materials.
(B) The core legal principles are that a Magistrate takes cognizance of an offence and not the offender; the stage of issuing process is distinct from trial; and additional persons may be summoned if there is material on record, without being formally named in the charge sheet. The remedy under Section 319 Cr.P.C. is not available at the stage of taking cognizance or issuing process.
Facts of the case:
A public limited company filed a complaint alleging fraud involving the misuse of letter of credit, leading to a FIR. During investigation, a person not named as an accused in the charge sheet was summoned based on material on record. The High Court held that summoning was not permissible without additional evidence, relying on Section 319 Cr.P.C., and quashed the summons.
Findings of Court:
The Supreme Court held that the High Court erred in applying Section 319 Cr.P.C., as the stage was one of taking cognizance and issuing process under Section 190 Cr.P.C. The court observed that once cognizance is taken, the Magistrate is entitled to summon any person who appears to be involved, including one whose name is in the charge sheet but not sent for trial, without the need for further evidence at that stage.
Issues:
Whether a person whose name appears in the charge sheet but is not sent for trial can be summoned by the Magistrate at the stage of taking cognizance under Section 190 Cr.P.C.
Ratio Decidendi:
The authority to summon persons at the stage of taking cognizance flows from Section 190 Cr.P.C. and Section 204 Cr.P.C., and is not restricted by the charge sheet. Section 319 Cr.P.C. has no application at this stage, and the presence of a name in the charge sheet column for accused not sent for trial does not bar the issuance of summons.
Result:
The appeal is allowed, the impugned order is set aside, and the trial court is directed to proceed with the matter in accordance with law.
JUDGMENT
Shah, J.-Leave granted in S.L.P. (Crl.) No. 620 of 2001.
2. The 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.
3. Learned 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. He, 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.
4. Brief 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.
5. On the 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. On the 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.
6. In our 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. Further, 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 v. State of Bihar1 by holding thus:
"In 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. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."
7. 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 charge-sheet.
8. In the result, the appeal is allowed, the impugned order passed by the High Court is set aside.
9. In 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. (Crol.) No. 1 of 2001, originally filed by J. Rajmohan Pillai before the High Court of Kerala would not survive at this stage and stand disposed of accordingly.
10. The trial Court to proceed with the matter in accordance with law.
(N.K.R.) Appeal allowed accordingly.
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