Delhi High Court
Mangeram & Ors vs State on 6 September, 2012
Author: A. K. Pathak
$~5
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 2107/2012
% Decided on: 6th September, 2012
MANGERAM & ORS ..... Petitioners
Through: Mr. Lokesh Kumar and
Mr. Harish Nigam, Advs.
Versus
STATE ..... Respondent
Through: Ms. Fizani Hussain, APP
with ASI Rajpal Singh, P.S.
Madhu Vihar.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (Oral)
1. Petitioners are relatives of husband of complainant-Smt.
Chanchal in FIR No. 154/2011 under Sections 498-A/406/34 IPC
of Police Station Madhu Vihar. Complainant had named the
petitioners in the FIR as the persons who had treated her with
cruelty. Case was investigated by the police and thereafter
charge-sheet under Section 173 of the Code of Criminal Procedure,
1973 (Cr.P.C.) was filed. Petitioners were not sent up to face trial.
Their names were mentioned in column no. 2 of the charge-sheet.
2. Vide order dated 23rd March, 2012, Metropolitan Magistrate,
Delhi, on perusal of charge-sheet and documents annexed
therewith took cognizance of the offence and ordered for issuance
of summons to the accused.
3. That is how petitioners are before this Court by way of
present petition under Section 482 Cr.P.C.
4. Learned counsel for the petitioners has vehemently
contended that after completing the investigation, on the basis of
material collected during the investigation, Investigating Officer
came to the conclusion that no sufficient material had come on
record for proceeding against the petitioners, thus, kept them in
column no. 2 of the charge-sheet. Accordingly, Metropolitan
Magistrate had no jurisdiction to summon the petitioners without
disclosing the material or evidence which compelled him to
summon the petitioners. Since, petitioners were not sent up to
face trial, learned Magistrate could not have summoned them at
this stage. He could have summoned the petitioners only under
Section 319 Cr.P.C. if any evidence had come against them. At
the initial stage Section 319 Cr.P.C. cannot be invoked in the
course of any inquiry or trial. He has placed reliance on Anand
Sharma vs. State 2003 I AD (Delhi) 38, Raj Kishore Prasad vs.
State of Bihar & Anr. (1996) 4 SCC 495 and Ranjit Singh vs. State
of Punjab (1998) 7 SCC 149.
5. Relevant it would be refer to Section 190 Cr.P.C. at this
stage, which reads as under:-
1) Subject to the provisions of this Chapter,
any Magistrate of the first class, specially
empowered in this behalf under sub- section
(2), may take cognizance of any offence-
(a) Upon receiving a complaint of facts
which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any
person other than a police officer, or upon
his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may
empower any Magistrate of the second class
to take cognizance under sub-section (1) of
such offences as are within his competence
to inquire into or try.
6. A perusal of above provision makes it clear that Magistrate
takes cognizance of offence and not the offender. After taking
cognizance of the offence 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 the process
should be issued to a particular person named in the charge-sheet
and also person not named therein and for this purpose he is
required to consider the FIR and the statements recorded by the
police officials and other documents filed along with the
charge-sheet. The Magistrate is entitled to take cognizance of an
offence 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 the stage of
taking cognizance Section 319 Cr.P.C. is not attracted.
7. In Raghubans Dubey vs. State of Bihar AIR 1967 (2) SCR
423, Supreme Court has held that "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".
8. In M/s SWILL Ltd. vs. State of Delhi & Anr. 2001 2747,
Supreme Court has held as under:-
In our view, from the facts stated above it is
clear that at the stage of taking cognizance
of the offence, provisions of S.190 Cr.P.C.
would be applicable. Section 190 inter alia
provides that the „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 S. 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 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 S. 173(2) Cr.P.C. the
Magistrate is entitled to take cognizance of
an 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
S. 319 Cr.P.C.
9. In Rajinder Prasad vs. Bashir and Ors. AIR 2001 SC 3524,
Supreme Court held that a Magistrate has jurisdiction to take
cognizance of offence against such persons also who have not been
arrested by Police as accused persons if it appears from the
evidence collected by the police that they were prima facie guilty
of offence alleged to have been committed.
10. The judgments relied upon by the learned counsel for the
petitioners are in the context of different facts and are of no help to
the petitioners. In Anand Sharma (supra), cognizance of offence
was taken by the Magistrate on 6th April, 1996 and process was
issued to the accused persons, who were placed in column no. 4 of
the charge-sheet. By a subsequent order dated 30th November,
1998, accused persons who were arrayed in column no. 2 were also
summoned. In this context, it was held that such a step would
have been taken by resorting to Section 319 Cr.P.C. Raj Kishore
Prasad (supra) and Ranjit Singh (supra) are also in the context of
Section 319 Cr.P.C.
11. For the foregoing reasons, present petition is dismissed being
devoid of merits.
Crl. M.A. 7298/2012 (Stay)
Disposed of as infructuous.
A.K. PATHAK, J.
SEPTEMBER 06, 2012
ga
