sec.190 crpc
Ladhu Ram Chowdhary
(Querist) 04 September 2008
This query is : Resolved
There is bar u/s. 190 cr.p.c. that once the process is issued against some accused, on the the next date, Magistrate cannot issue process for some other person against whom there is some material on record but his name is not included as an accused in the charge-sheet?
SANJAY DIXIT
(Expert) 05 September 2008
Sir, There is no bar under section 190 CrPC 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 is not included asaccused in the charge sheet.
Supreme court in the case of Swil Ltd v State of Delhi and Another :(2001) 6 SCC 670
K.C.Suresh
(Expert) 05 September 2008
Extract of the judgement:
In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of Section 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 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 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 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 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. Similar contention was negatived by this Court in Raghubans Dubey vs. State of Bihar [(1967) 2 SCR 423] by holding thus:
"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."
