The Magistrate takes cognizance of an offence and not the offenders, and the provisions of S. 319, Cr. P. C. come into operation in the course of any inquiry into or trial of an offence, not at the stage of taking cognizance of the offence.

Judgment

SHAH, J.

( 1 ) LEAVE granted in S. L. P. (Cri.) No. 620 of 2001.

( 2 ) THE High Court of Delhi in Criminal Misc. (Main) No. 1818 of 2000 vide judgment and order dated 3-7-2000 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 S. 319, Cr. P. C. , the High Court held that such persons could be summoned by the Court under S. 319 only after the evidence has been recorded. That order is challenged in this appeal.

( 3 ) LEARNED senior counsel, Dr. Singhvi, appearing for the appellant submitted that the impugned order passed by the High Court ignored the provisioins of S. 190, Cr. P. C. and there was no question of referring to S. 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 S. 319 and held that without there being any additional evidence respondent No. 2 could not be summoned as accused.

( 4 ) 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 Cadhewnuts 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 S. 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 whether he was involved in the conspiracy. He was, therefore, person 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 was also stated that accused had cheated, misappropriated and caused wrongful loss to the complainant-company to the tune of Rs. 2,10,60,000. 00.

( 5 ) ON the basis of the said charge-sheet, the Metropolitan Magistrate on 3/08/1999 issued summons against all accused shown in the FIR for the offence under Ss. 420/406/120-B, Indian Penal Code 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 Court of Delhi.

( 6 ) 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 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. Furthe