M/S. SWIL LTD. versus STATE OF DELHI AND ANR.

Citation: [2001] SUPP. 1 S.C.R. 527 · Decided: 14-08-2001 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
Section 319-Persons not named as accused-Power to proceed 
against-Scope and ambit of-Held: At the stage of issuance of process S.319 
has no application-That provision comes into operation in the course of 
inquiry into or trial of an offence. 
D 
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. 
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. 
I 
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 Cou

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