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Swil Ltd. v. State of Delhi, (SC) : Law Finder Doc Id # 11614

2001(4) Crimes 124 : 2001(3) R.C.R.(Criminal) 826 : 2001 AIR (SC) 2747 : 2001 CriLJ 4173 :
2001(3) AICLR 606 : 2001(6) SCC 670 : 2001 SCC(Cri) 1205 : 2001(6) JT 405 : 2001(5) Scale
224 : 2001 SCR 527 : 2001(43) ACrC 591 : 2001(93) DLT 8 : 2001(2) Andh LD (Criminal) 528 :
2001(3) ECrC 127 : 2001 Cri. L.R. 844 : 2001 ALL MR(Cri) 2174 : 2001 AIR (SCW) 3017 : 2001
(6) Supreme 85 : 2001(4) PLJR 163 : 2001 CalCriLR 520 : 2001(2) Apex Court Journal 478 :
2001(5) SLT 787 : 2001(21) Orrisa Cri. R. 512

SUPREME COURT OF INDIA

Before :- M.B. Shah and S.N. Phukan, JJ.

Criminal Appeal No. 820 of 2001 (Arising out of Special Leave Petition (Crl.) No. 620 of 2001).
D/d. 14.8.2001

Swil Ltd. - Appellant

Versus

State of Delhi and another - Respondent

WITH Special Leave Petition (Crl.) No. 1564-1565 of 20001.

A. Sasikanth - Appellant

Versus

State of Delhi and another - Respondents

AND Transferred Case (Crl.) No. 1 of 2001.

J. Rajmohan Pillai - Appellant

Versus

Union of India of others - Respondents

For the Appellant :- Dr. A.M. Singhvi, Sr. Advocate with Mr. Surya Kant, Mr. P.K. Bansal, Mrs. B.
Sunita Rao, Ms. Malini Poduval and Ms. Lansinglu Rongmei, Advocates.

For the Respondent :- Mr. R.K. Jain, Sr. Advocates with 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.

A. Criminal Procedure Code, 1973, Sections 319, 173(2) and 190(1)(b) - Charge sheet
submitted by police - A person not named as accused in charge sheet - Magistrate
taking cognizance of offence under Section 190(1)(b) Criminal Procedure Code -

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Magistrate can summon a person as accused without recording evidence on basis of

[Paras 6 and 7]

B. Criminal Procedure Code, 1973, Sections 190(1)(b), 319 and 173(2) - Police
submitting a report under Section 173(2) Criminal Procedure Code that no case was
made out against accused - Magistrate can ignore the conclusion of Investigating
Officer and take cognizance of offence under Section 190(1)(b) Criminal Procedure
Code by 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 Criminal Procedure Code 1967
(2) SCR 423 relied.

[Para 6]

C. Criminal Procedure Code, 1973, Sections 319, 190(1)(b) and 173 - Police submitting
charge sheet - Magistrate taking cognizance under Section 190 Criminal Procedure
Code - Magistrate can summon a person not mentioned in charge-sheet by considering
FIR and other documents submitted by police with charge-sheet 0 Recording of
evidence under Section 319 not necessary at this stage - Section 319 Criminal
Procedure Code would come into operation in course of inquiry or trial of offence.
1967(2) SCR 423 relied.

[Paras 6 and 7]

Case referred :

Raghubans Dubey v. State of Bihar, 1967(2) SCR 423.

JUDGMENT

M.B. 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 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 Section 319 Criminal Procedure Code, 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 Criminal Procedure Code
and there was no question of referring to Section 319 Criminal Procedure Code 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 said 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 know as M/s Pace International Company
and two letter of credits given by the complainant-appellant were transferred by one of the

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accused A. Suresh Kumar to the Pace International Company. On this discovery, notice under
Section 160 Criminal Procedure Code 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
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 Section 190 Criminal Procedure Code 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 Criminal Procedure Code 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) Criminal Procedure Code, 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 Criminal Procedure Code Similar contention was negatived
by this Court in Raghubans Dubey v. State of Bihar, 1967(2) SCR 423 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
Criminal Procedure Code 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) Criminal Procedure Code 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 Criminal Procedure Code 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. (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.

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Appeal allowed.

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