Pankaj Kumar Jain vs State of Delhi and Others

S. Ravindra Bhat, J.—The Petitioner u/s 482, Criminal procedure Code (hereafter "the Code) questions criminal proceedings whereby he was summoned by the Metropolitan Magistrate (hereafter "the trial court") on 4-12-2002. The brief facts necessary to decide the present petition, are that on the basis of complaint u/s 200 of the Code, initiated by Mac Millan India Ltd. (hereafter "the complainant") alleging commission of offences punishable u/s 63, Copyright Act read, with Sections 420 /485, Indian Penal Code (IPC) search investigations were ordered; search and seizure warrants too were issued. As a result of the investigation and raids conducted, allegedly pirated copies of the book "YOU CAN WIN" - originally published by the complainant were recovered/seized from five, different places. It was alleged that five such pirated copies were seized from one place, i.e. a book stall at Platform No. 1, New Delhi Railway station, in the presence of its occupant, Rajiv Vij.

It is averred by the petitioner, and contended on behalf of his counsel, Mr. Jagjit Singh, that the proceedings whereby the accused petitioner was summoned were irregular. Counsel submitted that summons were issued to the accused, on 7-8-2002, on the basis of the materials existing, viz the final report, the seizure memos, and other documents; at that stage, only Rajan Vij was shown as an accused. The petitioner, owner of the book stall was never shown as an alleged offender. However, by a strange and unknown procedure, without existence of any new materials, the court issued summons to the petitioner on 4-12-2002.

It was contended that there has to be a basis for the court to determine that somebody, other than named accused are also involved in the commission of offences. Counsel took me through the order sheet, to say that the final report, seizure memos, etc. were all part of the record; in the absence of any important or compelling evidence, and in the absence of the complainant impleading the petitioner, he could not have been summoned. It was also submitted that the entire story about seizure of the books is factually incorrect, and that in any case even as per the admitted materials the petitioner was not present at the site; he was merely owner of the stall, and could not be imputed with the knowledge that such acts attributable to his employee, were at his behest.

Counsel urged that the course adopted by the trial court was irregular; although power to summon someone not named could be used, that was only in exceptional cases, but not after consideration of the final report, and after the summons were issued against some of the accused. Counsel relied on the judgment reported as Anirudh Sen Vs. State (N.C.T. of Delhi), . It was submitted that once the discretion was exercised, upon consideration of the materials, that certain accused could be summoned, the court could not again, without recourse Sections 317 /319, (available only at the stage of trial), issue fresh summons.

Learned counsel for the respondents submitted that there was no provision in the Code barring exercise of power to issue summons to persons whose role might be apparent from the materials, but who were not named as accused, or were not summoned, in view of the amplitude of the power u/s 190 of the Code.

Section 190 of the Code reads as follows:

COGNIZANCE OF OFFENCES BY MAGISTRATES.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second 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.

The Supreme Court, in the judgment reported as M/s. SWIL Ltd. Vs. State of Delhi and Another, , held as follows:

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, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate u/s 204 CrPC 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 u/s 173(2) CrPC, the Magistrate is entitled to take cognizance of an offence u/s 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.

The above reasoning has been applied in judgments of this court, in Suresh Kumar Garg vs. State NCT) 131 (2006) DLT 515 ; Murari Lal Goel Vs. State of NCT of Delhi, . In the latter decision, the court held as follows:

SWIL''s was a case where on filing of charge-sheet, the Metropolitan Magistrate had issued summons against the accused shown in the FIR and, thereafter, on the next date fixed in the case, he issued summons to another person. It was held that at the stage of issuing process it is for the Magistrate to decide whether process should be issued against the persons named in the charge-sheet and also the ones not named therein. He is to consider for that purpose the FIR and the statements recorded by the police and the documents filed along with the charge-sheet, for taking cognizance u/s 190, Cr.P.C. It was also laid down that Section 319, Cr.P.C. comes into operation in the course of inquiry or trial of an offence. It was ruled that there is no bar u/s 190(b), Cr.P.C. that once the processes are issued against some accused, on the next date the Magistrate cannot issue process to some other person against whom there is material on record but his name is not included as accused in the charge-sheet. In view of this the Court of learned ACMM was not right in declining the application of the petitioner simply on the ground that it was not permissible to issue summons to any person other than those named in the charge-sheet and that he could exercise power in that respect only u/s 319, Cr.P.C. after the evidence was recorded.

It is evident from the above analysis that a magistrate is not denuded of power to summon an accused, merely because he issues an order summoning some accused. If, during the course of proceedings, it appears, on the basis of existing materials, that some others have to be summoned, he can do so. Here, the materials in the form of the seizure memo, the report disclosing the name of the petitioner, his status as owner of the shop, and other statements existed. The magistrate exercised his discretion, on application of mind. In these circumstances, I find no infirmity with the procedure adopted. As far as other submissions, i.e. the nature of evidence, irregularity of procedure alleged by the petitioner, in regard to the seizure, etc. are concerned, they are not such fatal or grave infirmities as would compel the exercise of jurisdiction of this court, u/s 482, of the Code, which has to necessarily be to secure the ends of justice. In view of the above findings, I see no merit in the petition. It is accordingly dismissed, with no order as to costs.