JUDGMENT
Jaspal Singh, J.
1. As the reference raises a question pristinely legal, we need not lose much breath on the facts. A brief resume would suffice.
2. One Mohd. Shafi was challaned under sections 420, 468 and 471 read with S. 34 of the Indian Penal Code. The learned Metropolitan Magistrate, after taking cognizance under section 190 of the Code of Criminal Procedure, supplied copies of statements and documents and on hearing arguments on charge first passed an order summoning Jagdish Sahai Mathur and Prem Narain Goel as co-accused under section 190(1)(c) of the Code and thereafter framed charges not only against Mohd. Shafi but also against Jagdish Sahai Mathur and Prem Narain. Needless to say, the newly added co-accused found the orders unpalatable. Consequently, they filed revision petition taking the plea that the order passed under Section 190 of the Code was bad as they could be summoned only under section 319 of the Code after the recording of evidence. Of course, they also took the plea that there being no prima facie case the charges could not be framed against them. The revision petition came before Y. K. Sabharwal, J. He found that whereas in D. K. Razdan v. State (1987 Chandigarh Criminal Cases, 173), Braham Singh v. State (Crl. R. 37/87 decided on April 9, 1987) and Baldev Kumar v. State (1987 (3) Crimes 645), it had been held that recording of evidence was a pre-requisite to the summoning of an additional accused, in Subhash Chander v. State (1989 (3) Delhi Lawyer, 159) : 1990 Cri LJ 1217, it had been held that a Sessions Judge could summon an additional accused on the basis of the statements recorded under section 161 of the Code and the documents filed Along with 1the report under section 173 of the Code. Faced with this situation Sabharwal, J. made reference giving rise to this order.
3. Could the petitioners be summoned to stand the trial independently of S. 319 of the Code ? This is the question which has necessitated the reference and which now stares at us and craves for an answer.
4. As per Mr. Dinesh Mathur, Senior Advocate appearing for the petitioners, the Magistrate can take cognizance under section 190 of the Code only against the person already arrayed as an accused and it is only on the recording of evidence during an inquiry or a trial (as the case may be) that the power to summon others as accused springs out from the fountain head of S. 319 of the Code. In support he had in this armoury not only the above-noted single bench judgments of our own High Court, namely D. K. Razdan v. State, Braham Singh v. State and Baldev Kumar v. State (supra), but also a single bench judgment coming from the Punjab and Haryana High Court namely Mithlesh Kumari v. State of Haryana (1988 Ch C Cases 554) : 1989 Cri LJ (NOC) 12 which undoubtedly, stand by him, firmly and squarely.
5. Is S. 319 of the Code, the sole repository of the power ? Let us proceed to examine.
6. The language of S. 190 of the Code is loaded with significance. It talks of cognizance and that too of the ‘offence’ and not the ‘offender’. The Magistrate first takes cognizance of the offence and thereafter only proceeds to find out who the offenders are. The steps though appear to be intertwined are distinct. The Supreme Court makes it clear in Raghubans Dubey v. State of Bihar :
“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.
7. The view expressed won approval subsequently in Hareram Satpaty v. Tikaram Aggarwala . Thus, the Supreme Court not only enjoins upon the Magistrate to find out, on taking cognizance, who the offenders really are but also casts duty upon him, once he comes to the conclusion that apart from the persons sent up by the police some other persons are also involved, to proceed against those persons as summoning of such persons is a “part of the proceeding initiated by his taking cognizance of an offence.”
8. To counter the impact, it was argued by Mr. Mathur that in all the cases of the Supreme Court, part evidence had been recorded. To us, it does not water-down the legal position. In any case, in Hareram Satpathy v. Tikaram Agarwal (supra), the Magistrate had summoned the additional accused wholly on the basis of the material in the police report under section 173 of the Code. The Supreme Court relying upon Raghubans Dubey’s case, put its seal of approval. It observed at page SC 1570 : AIR 1978 :-
“In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our judgment exceed the power vested in him under law.”
9. The act of taking cognizance is only the fulfillment of a condition requisite for the initiation of judicial proceedings and when the Magistrate takes cognizance it is taken of the case as a whole for trial and not the individual offender. The taking of cognizance thus does not, in itself, give rise to any vested right in any one. It is a continuous act. This being the position it is within the power of the magistrate to summon anyone, who, on the basis of the statements recorded under section 161 of the Code and the documents submitted under section 173 of the Code, appears to him to be prima facie guilty of the offence. Indeed having seisin of the case relating to a criminal transaction, it is his duty to see that justice is done. We feel that by agreeing with what Mr. Mathur wants us to agree, we would circumscribe and fetter the power of the Magistrate. This power, under the rule of Raghubans Dubey’s case would in a warrants case instituted on police report be available to the Magistrate even while considering the question of the framing of the charge. Such a power is not denuded by the fact that the Magistrate did not summon the additional accused earlier. In a similar situation, the Division Bench of the Calcutta High Court observed as follows in Saifar v. State of West Bengal, :-
“Under S. 251A of the Criminal Procedure Code the Magistrate after consideration of the documents referred to under S. 173 and hearing the prosecution and the defense, has to decide whether a charge has been prima facie established against any of the accused, and if he is satisfied on that point, he will frame a charge. Thus, before examination of any witness, by perusing the statements recorded by the police under section 161 of the Criminal Procedure Code and the other documents referred to under section 173 like the first information report and the dying declaration, if any, and the medical report, the magistrate has to decide whether there is a prima facie case against the persons sent up by the police along with the charge-sheet. It is clear that, at the same time the magistrate can also decide on the basis of the same material whether there is a prima facie case against other persons not sent up by the police and if the Magistrate is so satisfied certainly the Magistrate is entitled to summon them and place them on trial along with the other persons sent up by the police.”
10. It is pertinent to note that S. 190 of the Code appears in a Chapter dealing with conditions requisite for initiation of proceedings, whereas S. 319 appears in a Chapter dealing with general provisions as to inquiries and trials. S. 319 of the Code is thus self-contained, complete in itself and independent of S. 190. It empowers the Magistrate to add any person, not being the accused before him, but against whom there appears during inquiry or trial, sufficient evidence indicating his involvement in the offence. This is the decision of the apex court in Joginder Singh v. State of Punjab which was elaborated and reiterated in Municipal Corporation of Delhi v. Ram Kishan Rohatgi and in Dr. S. S. Khanna v. Chief Secretary Patna . What is of significance is that S. 319 operates only within a well-defined narrow sphere. It is only designed to meet the situation where a court on recording evidence discovers from the evidence so recorded that some additional accused should also be tried together with the accused already facing trial or inquiry. The field in which S. 319 operates is thus limited and totally different, and has, as such, no role to play in the pre-charge proceedings in a warrant trial, as in the case before us. S. 319 of the Code can, thus hardly be considered to be the sole repository of the power of summoning additional accused. With utmost respect it is this which was altogether missed in the cases of R. K. Razdan, Braham Singh, Baldev Kumar and Mithlesh Kumari (supra). We may mention that in formulating out view, we find ourselves in the august company of a Full Bench decision of the Patna High Court in Sk. Latfur Rahman and others v. The State 1985 Crl LJ 1238.
11. As would be borne out from the preceding paragraphs, Sabharwal, J. has also referred to Subhash Chander v. State. The judgment relates to the ambit and scope of S. 193 of the Code and deals with the powers of a Sessions Judge after a case in respect of an offence is committed. It is thus on a different platform.
12. For what has been recorded by us above, we are of the view that the Magistrate had in the present case, the power to summon the petitioners additional accused. However, we feel that the learned Magistrate has wrongly invoked Clause (c) of sub-section (1) of S. 190. The clause applicable is (b) of sub-section (1) of S. 190 of the Code. The rest of the points raised in the revision petition are left open for the decision of the single bench.
Malik Sharief-Ud-Din, J.
13. I had earlier in Crl. R. 37/87 Braham Singh v. State (Delhi Admn.) decided on 9th April, 1987, expressed my view that S. 319, Cr.P.C. was the only provision under which the court could summon any person found to be guilty of offence if during the course of enquiry of trial evidence justifies that course. After going through the judgment written by my learned brother, Jaspal Singh, J. and on reconsideration of the matter as a result of lengthy arguments that were advanced, I fully endorse the views expressed by my learned brother in this judgment regarding the scope and ambit of S. 319, Cr.P.C. and regarding the powers of the court to summon any person to stand trial. I, therefore, agree with the conclusion.
14. Order accordingly.