M/S SWIL LTD V. STATE OF DELHI & OTHERS
| PETITIONER | M/S SWIL LTD |
| RESPONDENT | STATE OF DELHI & OTHERS |
| DATE OF JUDGEMENT | 14TH August 2001 |
| CASE NUMBER | Appeal(Crl.) 820 of 2001 |
| BENCH | S.N.Phukan, M.B.Shah |
FACTS OF THE CASE:-
- In this case the appellant and complainant were part of a public limited company which dealt with import and export. The registered office of this company was in Calcutta and the branch office in Delhi.
- On 28th August 1997 a FIR was lodged at New Delhi police station against M/S Malabar Cashew nuts & Alled products office at Kerala.
- When the investigation was on, it was found that one of the respondent J.Rajmohan Pillai who was the managing director of another sister company, had a stay order issued by the High Court of Kerala due to which police couldn’t interrogate him nor find out whether he was involved in the conspiracy.
- When the police completed the investigation they mentioned all the names of the accused in the charge sheet made by them. There was no mention of J.Rajmohan Pillai as the accused but his name was there in coulomb no. 2 of the report which meant he was not an accused and won’t be sent for trial.
- The police report also stated that the accused by wrongful conspiracy has caused a loss of Rs. 2, 10, 60,000 of the company.
- On 3rd August 1999 the Metropolitan Magistrate issued summons to all the accused mentioned in the charge sheet. The offences mentioned in the report are cheating on delivery of property (section- 420 IPC), punishment for criminal breach of trust (section- 406 IPC), punishment for criminal conspiracy (section- 120B IPC).
- Then on the next hearing which was on 20th December 1999 summoned was issued for J. Rajmohan Pallai even when his name was not on the charge sheet.
- Now this order was challenged by him and filed a petition before the High Court of Delhi.
ISSUE OF THE CASE:-
Can a Magistrate serve summons to an individual whose name is not mentioned on the charge sheet submitted by the investigating agency?
PETITIONER’S CONTENTION:-
- The petitioner’s representative Dr.Singhvi stated that the High Court clearly ignored the provision of Section 190 of Cr.P.C as there was no need to summon the other respondent whose name was not mentioned on the accused list.
- Without any additional evidence the magistrate can’t summon anyone who is not an accused according to the charge sheet.
- Now in this case J. Rajmohan Pillai’s name was not on the accused list so the court has no right to serve summons against him. The court can only do so after the evidence is recorded.
RESPONDENT’S CONTENTION:-
- The respondent’s interpretation of the case was that once the magistrate takes the cognizance of any offence then all the facts mentioned in the police report are part of the offence. It means the magistrate takes the cognizance of an offence not offendee.
- When the Magistrate is at the stage of the issuing process he is empowered to issue the process against an individual or more than one.
- The Magistrate is required to take cognizance under Section 190(1) (b) even if there is no case against a certain person. It means that the magistrate can use his own knowledge and interpret through the police final report.
- According to the referred case of Raghubans Dubey v. State of Bihar it stated that summoning additional accused is a process of starting to take the cognizance of an offence.
- Once the Magistrate takes the cognizance of a case it becomes his duty to find the real offender.
JUDGEMENT OF THE CASE:-
After hearing both the sides the court came to an conclusion that there was no reason for referring to the provisions of section 319 of Cr.P.C, this is because this section would come into role during any inquiry or trial of an offence. Here neither the magistrate holding the inquiry nor the trial was stated. Under section 190 of Cr.P.C the court can take cognizance but the magistrate can’t issue the process for someone whose name is not mentioned as accused in the charge sheet. Hence the order passed by the High Court was dismissed also section 319 of Cr.P.C has no effect in these circumstances.
CONCLUSION:-
The criminal justice system operates within a set of hierarchies of institutions that facilitate the process of achieving justice. It starts with the police and eventually leads to a court that administers justice. Out of concern for the impartial and effective functioning of the criminal justice system, courts have been given additional powers to ensure that perpetrators do not go unnoticed. Section 319 of the Criminal Procedure Code, 1973 contains a empowerment provision allowing the Criminal Court to prosecute a person who has not been named or identified as a defendant where there is evidence that that person is also a participant in an offense they are committing could be tried, with the accused being investigated or tried.
written by Amrita Priyadarshini intern under legal vidhiya
