M/S. SWIL LTD.versusSTATE OF DELHI AND ANR.

                              MIS. SWIL LTD.                                    A
                                      v.
                      STATE OF DELHI AND ANR.

                            AUGUST 14, 2001

                 [M.B. SHAH AND S.N. PHUKAN, JJ.]                               B

      Code of Criminal Procedure, 1973 :

       Section 190-0./fence-Cognizance of-By Magistrate-Scope and
ambit of-Summons issued against a person not mentioned or named as              C
accused in charge-sheet-Correctness of-Held : Under S.190 Magistrate
takes cognizance of an offence and not the offender-At the stage of issuing
process it is for the Magistrate to decide whether or not to issue process
against persons named or not named in the charge-sheet-Hencl!, summons
rightly issued
                                                                                D
      Section 319-Persons not named as accused-Power to proceed
against-Scope and ambit of-Held: At the stage of issuance ofprocess S.319
has no application-That provision comes into operation in the course of
inquiry into or trial of an offence.

      The appellant-complainant filed an FIR against respondent-No. 2 for       E
cheating, misappropriating and causing wrongful loss to the appellant. But
respondent No. 2 was shown in column No. 2 of the charge-sheet, which was
meant for the accused who were not sent for the trial.

      On the basis of the aforesaid charge-sheet, the Metropolitan Magistrate
issued summons against all the accused including respondent No. 2. However,     F
the High Court quashed the summons on the ground that respondent No. 2
could be summoned by the court under Section 319 of the Code of Criminal
Procedure, 1973 only after the evidence had been received. Hence this
appeal
      On behalf of the appellant it was contended that the High Court ignored   G
the provisions of Section 190 Cr.P.C. and that there was no question of
referring to Section 319 Cr.P.C. at the stage of issuance of summons.

     Allowing the appeal, the Court
     HELD: I. At the stage of taking cognizance of the offence, provisions H
                                  527
    528                    SUPREME COURT REPORTS [2001] SUPP. 1 S.C.R.

A   of Section 190 of the Code of Criminal Procedure, 1973 would be applicable.
    As per this provision, a 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
B   should be issued against particular person/persons named in the charge-
    sheet and also not named therein. For that purpose, he is required to c;onsider
    the FIR and the statements recorded by the police officer and other documents
    tendered along with the 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
C   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. [530-C, D, E, Fl

D         Raghubans Dubey v. State of Bihar, [1967( 2 SCR 423, relied on.

          2. In the instant 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.
E   P.C, nor the trial had started. He was exercising his jurisdiction under
    Section 190 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
F   is not included as accused in the charge-sheet. [530-H, 531-A, BJ

         CRIMINAL APPELLATE JURISDICTION: Criminal·Appeal No.
    820 of2001.

           From the Judgment and Order dated 3.7.2000 of the Delhi High Court
G   in Crl. Misc. (Main) No. 1818 of2000.                                               I
                                         WITH
          SLP (Crl.) Nos. 1564-1565/2001 and Transfered case (Crl.) No. 112001.

         Dr. A.M. Singhvi, Surya Kant, P.K. Bansal, B. Sunita Rao, Ms. Malini
H   Poduval, Ms. Lansinglu Rongmei for the Appellant.
                     MIS SWILL TD. v. STATE [SHAH, J.]                      529
     R.K. Jain, Y.N. Bhardwaj, Ms. Manu Beri, Yash Pal Dhingra, B.A. Mohanti,      A
Ms. Neera Gupta, Avatar Singh Rawat and D.S. Mehra for the Respondents.

     · The Judgment of the Court was delivered by

      SHAH, J. Leave granted in S.L.P. (Cr!.) No. 620 of2001.
                                                                                   B
      The High Court of Delhi in Criminal Misc. (Main) No.1818 of2000 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             C
summoned by the Court under Section 319 only after the evidence has been
recorded. That order is challenged in this appeal.

        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        D
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           E
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.

       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         F
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         G
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 wh6ther he was          H
     530                    SUPREME COURT REPORTS [2001] SUPP. 1 S.C.R.

A 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 W!IS also
     stated that accused had cheated, misappropriated and caused wrongful loss
     to the complainant company to the tune of Rs.2, I 0,60,000.

B          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/I 20-B !PC. 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
C    Court of Delhi.

         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
D 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
E 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( I )(b) even if the police report is to the effect
  that no case is made out against the accused by ignoring the conclusion
F 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 Bihar, (1967] 2 SCR 423 by
G 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
H           apart from the persons sent up by the police some other persons are
                       M/S SWIL LTD. v. STATE [SHAH, J.]                      531
           involved, it is his duty to proceed against those persons. The            A
           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, B
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
atcused, on the next date, the Magistrate cannot issue process to some other C
person against whom there is some material on record, but his name is not
included as accused in the charge-sheet.

     In the result, the appeal is allowed, the impugned order passed by the
High Court is set aside.
                                                                                     D
      In view of the aforesaid order, SLP (Crl.) Nos. 1564-I565 of2001 filed
by A. Sasikanth seeking quashing of the impugned order passed by the High
Court of Delhi in Criminal Misc. (Main) No. I8I8 of2000 and T.C. (Crl.) No.I
of 200 I, originally filed by J. Rajmohan Pillai before the High Court of Kera la
would not survive at this stage and stand disposed of accordingly.
                                                                                     E
         The trial court to proceed with the matter in accordance with law.

v.s.s.                                                          Appeal allowed.