2001 JTR(SC) 1097
2001 3 AICLR 606 ; 2001 AIR(SC) 2747 ; 2001 AIR(SCW) 3017 ; 2001 2 ALD(Cri)(SC) 528 ; 2001 43 AllCriC 591 ; 2001 AllMR(Cri)(SC) 2174 ; 2001 CriLR 844 ; 2001 CriLR(Cal) 520 ; 2001 4 Crimes(SC) 124 ; 2001 CrLJ 4173 ; 2001 93 DLT 8 ; 2001 3 EastCrC(SC) 127 ; 2001 2 JLJR(SC) 875 ; 2001 6 JT 405 ; 2001 4 PLJR(SC) 163 ; 2001 5 Scale 224 ; 2001 6 SCC 670 ; 2001 SCC(Cri) 1205 ; 2001 SCR 527 ; 2001 5 SLT 787 ; 2001 2 UJ 1349 ; 2001 KHC 982 ; 2001 6 Supreme 85
SUPREME COURT OF INDIA
SWIL
Versus
State of NCT of Delhi
Decided on : August 14, 2001
The Magistrate takes cognizance of an offence and not the offenders, and the provisions of S. 319, Cr. P. C. come into operation in the course of any inquiry into or trial of an offence, not at the stage of taking cognizance of the offence.
Act Referred :CRIMINAL PROCEDURE CODE : S.190, S.339, S.204, S.173(2), S.190(1)(b), S.154, S.162, S.319
(A) The Criminal Procedure Code provisions S.190, S.204, S.173(2), S.190(1)(b), S.154, S.162, and S.319 govern the cognizance, investigation, and process issuance by a Magistrate. In this case, the applicability of S.190 at the stage of taking cognizance was examined, where the Magistrate is empowered to take cognizance of an offence based on a police report and subsequently issue process to accused persons, whether named in the charge-sheet or not, without invoking S.319 which pertains to later stages of inquiry or trial.
(B) Key legal principles include that cognizance is taken of an offence and not of an offender, the Magistrates independent duty to identify all persons involved based on the investigation material, and the non-application of S.319 during the initial process-issuing stage. Additional accused can be summoned at this stage if material on record suggests their involvement, and once cognizance is taken, the Magistrate may issue process to any person against whom there is evidence, irrespective of the charge-sheet listing. (
Facts of the case:
A public limited company filed an FIR alleging fraud involving letter of credits and misappropriation of funds, naming certain accused in the FIR while showing respondent two in column two of the charge-sheet. The police issued summons to all persons named in the FIR, including respondent two, which was challenged before the High Court on the ground that respondent two was not formally added as an accused. The High Court stayed the summons relying on S.319, a position contested on appeal.) (
Findings of Court:
The High Court was found to be totally unjustified because it applied S.319 at a stage where only cognizance under S.190 and process issuance under S.204 were relevant. The court held that the Magistrate was competent to summon respondent two based on the material available, without waiting for additional evidence or trial proceedings. (
Issues:
Whether a Magistrate can issue summons to a person not included as an accused in the charge-sheet during the cognizance stage without invoking S.319 of the Cr.P.C.) (
Ratio Decidendi:
S.190 read with S.204 empowers a Magistrate to take cognizance of an offence and summon any person, including those not formally named in the charge-sheet, if there is material on record suggesting their involvement, and S.319 has no application at this preliminary stage.) (
Result:
The appeal is allowed, the impugned order of the High Court is set aside, and the trial court is directed to proceed with the matter in accordance with law.)
(A) The Criminal Procedure Code provisions S.190, S.204, S.173(2), S.190(1)(b), S.154, S.162, and S.319 govern the cognizance, investigation, and process issuance by a Magistrate. In this case, the applicability of S.190 at the stage of taking cognizance was examined, where the Magistrate is empowered to take cognizance of an offence based on a police report and subsequently issue process to accused persons, whether named in the charge-sheet or not, without invoking S.319 which pertains to later stages of inquiry or trial.
(B) Key legal principles include that cognizance is taken of an offence and not of an offender, the Magistrates independent duty to identify all persons involved based on the investigation material, and the non-application of S.319 during the initial process-issuing stage. Additional accused can be summoned at this stage if material on record suggests their involvement, and once cognizance is taken, the Magistrate may issue process to any person against whom there is evidence, irrespective of the charge-sheet listing. (
Facts of the case:
A public limited company filed an FIR alleging fraud involving letter of credits and misappropriation of funds, naming certain accused in the FIR while showing respondent two in column two of the charge-sheet. The police issued summons to all persons named in the FIR, including respondent two, which was challenged before the High Court on the ground that respondent two was not formally added as an accused. The High Court stayed the summons relying on S.319, a position contested on appeal.) (
Findings of Court:
The High Court was found to be totally unjustified because it applied S.319 at a stage where only cognizance under S.190 and process issuance under S.204 were relevant. The court held that the Magistrate was competent to summon respondent two based on the material available, without waiting for additional evidence or trial proceedings. (
Issues:
Whether a Magistrate can issue summons to a person not included as an accused in the charge-sheet during the cognizance stage without invoking S.319 of the Cr.P.C.) (
Ratio Decidendi:
S.190 read with S.204 empowers a Magistrate to take cognizance of an offence and summon any person, including those not formally named in the charge-sheet, if there is material on record suggesting their involvement, and S.319 has no application at this preliminary stage.) (
Result:
The appeal is allowed, the impugned order of the High Court is set aside, and the trial court is directed to proceed with the matter in accordance with law.)
Judgment
SHAH, J.
( 1 ) LEAVE granted in S. L. P. (Cri.) No. 620 of 2001.
( 2 ) THE High Court of Delhi in Criminal Misc. (Main) No. 1818 of 2000 vide judgment and order dated 3-7-2000 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 S. 319, Cr. P. C. , the High Court held that such persons could be summoned by the Court under S. 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 provisioins of S. 190, Cr. P. C. and there was no question of referring to S. 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 S. 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 Cadhewnuts 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 S. 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, person 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. 00.
( 5 ) ON the basis of the said charge-sheet, the Metropolitan Magistrate on 3/08/1999 issued summons against all accused shown in the FIR for the offence under Ss. 420/406/120-B, Indian Penal Code 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 S. 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 S. 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 S. 173 (2), Cr. P. C. , the Magistrate is entitled to take cognizance of an offence under S. 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 merging 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 S. 319, Cr. P. C. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar (1967) 2 SCR 423 : (AIR 1967 SC 1167 : 1967 Cri LJ 1081) by holding thus (para 9 of AIR, Cri LJ) :"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 S. 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 S. 2 (g), Cr. P. C. nor the trial had started. He was exercising his jurisdiction under S. 190 of taking cognizance of an offence and issuing process. There is no bar under S. 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, S. L. P. (Crl.) Nos. 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 not survive at this stage and stand disposed of accordingly.
( 10 ) THE trial Court to proceed with the matter in accordance with law. Appeal allowed.