Supreme Court of India
M/S. SWIL LTD. versus STATE OF DELHI AND ANR.
- Decided
- 14 August 2001
- Judges listed
- M.B. SHAH
- Disposal
- Appeal(s) allowed
Citations
- Official
- [2001] SUPP. 1 S.C.R. 527 · 2001 INSC 367
- Also cited as
- (2001) 6 SCC 670
- AIR 2001 SC 2747
- (2001) SCC(CRI) 1205
- JT 2001 (6) SC 405
Learned from how other judgments cite this one, in their text or in the official Supreme Court Reports' lists of cases they refer to: each is cited this way by at least two judgments, and at least twice as often as any other citation to this judgment in that report. We hold no commercial reporter's text, only these citation strings.
- Not shown
- 1 other citation string that other judgments attach to this one, on evidence too thin or too divided to publish.
Cited by
Cited in 5 other Supreme Court judgments we hold.
- NAHAR SINGH versus THE STATE OF UTTAR PRADESH & ANR.
- R. N. AGARWAL versus R. C. BANSAL & ORS.
- HARDEEP SINGH versus STATE OF PUNJAB & ORS.
- DHARAM PAL & ORS. versus STATE OF HARYANA & ANR.
- RAJINDER PRASAD versus BASHIR AND ORS.
Counted only in the Supreme Court judgments we hold whose text we could read, not in High Court judgments. We match each citation to a judgment automatically, so a citation we cannot match is not counted. "Cited" says only that a judgment refers to this one, not whether it followed, distinguished or overruled it.
The Court's text
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SHAH, J. Leave granted in S.L.P. (Cr!.) No. 620 of2001.
p. 529, margin A
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 summoned by the Court under Section 319 only after the evidence has been recorded. That order is challenged in this appeal.
p. 529, margin B
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.
p. 529, margin C
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 wh6ther he was involved in the conspiracy. He was, therefore, not joined as accused charge-sheet submitted by the police, but his name was shown in no.2, which is meant for the accused who are not sent for the trial. It stated that accused had cheated, misappropriated and caused wrongful to the complainant company to the tune of Rs.2, I 0,60,000.
pp. 529–530, margin E
On the basis of the said charge sheet, the Metropolitan Magistrate 3rd August, 1999 issued summons against all accused shown in the the offence under Sections 420/406/I 20-B !PC. On the next date of (20.12.1999), he also issued the summons to respondent no.2. That part order was challenged by him by filing the aforesaid petition before the Court of Delhi.
p. 530, margin B
In our view, from the facts stated above it is clear that at the taking cognizance of the offence, provisions of Section 190 Cr.P.C. would applicable. Section 190 inter alia provides that 'the Magistrate may cognizance of any offence upon a police report of such facts which constitute an offence.' As per this provision, Magistrate takes cognizance of an 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. the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named charge sheet and also not named therein. For that purpose, he is required consider the FIR and the statements recorded by the police officer and documents tendered along with charge sheet. Further, upon receipt of 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 that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his to the facts emerging from the investigation by taking into account statement of the witnesses examined by the police. At this stage, there 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 holding thus:
p. 530, margin C
"In our opinion, once cognizance has been taken Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons 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."
pp. 530–531, margin G
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.
p. 531
In the result, the appeal is allowed, the impugned order passed by the High Court is set aside.
p. 531
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.
p. 531
The trial court to proceed with the matter in accordance with law. v.s.s. Appeal allowed.
p. 531