Revision Appln No.

49/2022 1

MHCC050007242022

Presented on : 10-02-2022
Registered on : 10-02-2022
Decided on : 31-10-2023
Duration : 1 years, 8 months, 21 days

Exh.__

IN THE COURT OF SESSIONS AT DINDOSHI

(BORIVALI DIVISION), GOREGAON, MUMBAI

REVISION APPLICATION NO.49 OF 2022

(C.C. No.25/PW/2016)

Atharva Rajeev Sawant

Aged 26 years, Occ. ­Advocate,
Residing at C/12 Amar Subway CHS,
Mumbai 400054 ….Applicant

VERSUS

1. The State of Maharashtra

Through the Senior Inspector of Police,
Juhu Police Station, Mumbai

2. Prakash Sheth
Residing at Flat No.1103,
Sulsa Apartment, Opp. Malabar Hill
Police Station, Mumbai 400 006 ......Respondents

Adv. Rizwan Merchant along with Adv. Sayaji Nangre for applicant.
APP Mr. P. K. Mahajan for respondent No.1/State.
Adv. R. N. Bhavsar for respondent No.2.

CORAM : H.H. Additional Sessions Judge,

Shri S. N. Salve.
Court Room No.15.
Date : 31st October, 2023
Revision Appln No.49/2022 2

JUDGMENT

By this Revision Application under Section 397 of the

Code of Criminal Procedure (for short, the Code) applicant questions
the correctness, legality and proprietary of the Order dated
01.01.2022 passed on Ex.7 in C. C. No.25/PW/2016 whereby the
Ld. Magistrate 10th Court, Andheri, Mumbai issued summons to the
applicant under Section 319 r/w Section 190 of the Code.

2. In this Criminal Revision Application, a short question

that arises for consideration is whether a Magistrate taking
cognizance of an offence on the basis of a Police Report in terms of
Section 190 (1)(b) of the Code can issue summons to any person not
arraigned as an accused in the police report.

3. The brief facts giving rise to the present Revision

Application are that the respondent No.2­informant’s daughter
(hereinafter referred to as “the victim”) was studying in Pravin
Gandhi College of Law, Mumbai along with the applicant and other
two accused. On 16.09.2014, the victim and other students of
Division­A including the applicant and other two accused were
attending the lecture being delivered by Prof. Anuj Singh. At the
end of the lecture, Prof Anuj Singh was taking presentation of
students, the applicant, other 2 accused started running after each
other in the classroom, accused No.1 Ms. Parinaz Bharucha threw
her black coloured belly shoe towards co­accused No.2 Tanish Shah
which hit the victim, as a result, there was commutation in the
class room. The victim then reported the matter to the Principal
who told the victim to lodge an FIR with the police. When the
Revision Appln No.49/2022 3

victim, applicant and other 2 accused were heading back to their

classroom from Principal's Office, accused No. 2 told the victim “Le
Kya Ukhad Liya Principal Ke Pass Jakar, Vaise Bhi Atharva's father is
a top criminal lawyer, So Tu Kahin Bhi Nahi Jit Payagi”. The victim
informed to her father (respondent No.2­informant) on phone. The
victim's father respondent No.2 though discussed the matter with the
Principal and requested him to take action against the students,
there was no response from the Principal. The victim's father sent a
written complaint to the Principal by speed post, however, no action
was taken. Respondent No. 2/ the father of the victim made
complaint to Senior Police Inspector, however, no offence was
registered. The respondent No.2, therefore, filed Criminal Writ
Petition No.1852 of 2015 before the Hon’ble High Court against
Juhu Police Station, whereupon, an FIR bearing No.282 of 2015 for
the offence under section 337, 354, 509, 107, 109 of the IPC was
registered. The investigation was carried out and police report was
submitted against accused No. 1 & 2. On 11.12.2019, the respondent
No. 2 and the victim moved application (Ex.7) under Section 190 of
the Code with a prayer to take cognizance against the applicant,
upon which the Ld. Magistrate called report from the Investigating
Officer and after the report was submitted by the Investigating
Officer, the impugned order came to be passed below Ex.7
summoning the applicant under Section 319 and 190 of the Code.

4. Being aggrieved and dissatisfied by the impugned

Order, the applicant has preferred this Revision Application under
Sec.397 of the Cr. P. C. on the following grounds.

i) The impugned Order dated 01.01.2022 is passed against

the settled principles of law and deserves to be quashed and set
Revision Appln No.49/2022 4

aside.

ii) The Ld. Magistrate has taken cognizance under Section

190 of the Code, but failed to have followed the procedure
prescribed under Chapter XV and XVI of the Code.

iii) The impugned Order came to be passed under Section

319 of the Code, however, the powers under Section 319 of
Code can be exercised only after recording evidence for the
prosecution and thus, the Ld. Magistrate has committed error
in passing the order under Section 319 of Code without there
being any evidence.

iv) The alleged offence took place on 16.09.2014 and after

gap of 7 years, the Ld. Magistrate has chosen to take
cognizance under Section 190 of the Code. The impugned
order of taking cognizance against the applicant is beyond the
period of limitation and is barred under Section 468(2) of the
Code.

v) The Ld. Magistrate has erred in observing that the

accusations against the applicant are well founded and there
are sufficient grounds to proceed against him.

5. According to the applicant, on the above grounds, the

impugned order passed by the Ld. Magistrate being not legal, proper
and correct, it requires to be quashed and set aside. Ultimately, it is
prayed by the applicant that the impugned order passed by the Ld.
Magistrate being illegal, improper and incorrect, it may be quashed
and set aside.

6. Respondent No.2­informant has opposed the Revision

Revision Appln No.49/2022 5

Application by filing reply (Exh.5). The Respondent No.2­informant

has supported the impugned order passed by the Ld. Magistrate. It is
submitted that the impugned order passed by the Ld. Magistrate is
legal, proper and correct and warrants no interference. The
respondent No.2, therefore, prayed that revision application being
devoid of merits may be dismissed.

7. Applicant has filed affidavit­in­rejoinder (Exh.6) and

(Exh.7) denying the allegations made in the reply tendered by the
respondent No.2­informant.

8. The points for determination along with my findings

with reasons thereon are as follows :­

Sr.No. POINTS : FINDINGS

1. Whether the impugned order dated
passed below Exh. 7 whereby by
the Ld. Magistrate issued summons
to applicant under section 319 read : In the affirmative.
with 190 of the Code, is legal,
proper and correct ?

2. Whether the impugned order :

warrants any interference? In the negative.

3. What order? : Revision Application is

dismissed.

REASONS

Point No.1:­

9. I have heard the Ld. Advocate for the applicant, the

Ld.APP for the respondent No.1 ­ the State of Maharashtra and the
Revision Appln No.49/2022 6

Ld. Advocate for the respondent No.2­ informant. I have also

perused the written argument (Exh.8) tendered by the Ld. Advocate
for the applicant. The Ld. Advocate for the applicant argued that on
the basis of the allegations made by the respondent No.2­informant
and the victim, an FIR came to be registered under Sections 337,
354, 509, 107, 109 of the IPC. As there was no material to proceed
against the present applicant, police report came to be filed only
against other two accused. He submitted that on 04.01.2016 the Ld.
Metropolitan Magistrate took cognizance of the offence, whereafter,
an application under Sections 173(8) and under Section 190 of the
Code for taking cognizance against the applicant were made by the
respondent No.2­informant. After considering the submissions, the
Ld. Magistrate has passed the impugned order under Sections 190
and 319 of the Code issuing summons to the applicant. It is
vehemently argued by the Ld. Advocate for the applicant that though
the impugned order was passed under Section 190 of Code, the Ld.
Magistrate has not followed the procedure under Chapter XV and
XVI of the Code. It is further argued that in so far as Section 319 of
the Code is concerned, Court can exercise power under the said
provision only if it appears from the evidence that any person not
being the accused has committed any offence, the Court may
proceed against such person which he appears to have committed. It
is further submitted that at this stage, the Ld. Magistrate could not
have taken cognizance under Section 319 of the Code and as far as
provision under Section 190 of the Code is concerned, procedure is
not followed. To support the above submissions, reliance is placed
on the decision in the case of Hardip Singh Vs. the State of Punjab &
Ors.; 2014 Cri. Law Journal 1118. Lastly, he prayed that impugned
order being illegal, improper and incorrect, it requires to be quashed
and set aside.
Revision Appln No.49/2022 7

10. On the other hand, the Ld. APP for the respondent No.1­
the State of Maharashtra supported the impugned order passed by
the Ld. Metropolitan Magistrate and further submitted that under
Section 190 of the Code, the Ld. Magistrate has power to take
cognizance of offence and to proceed against any person who has
not been arraigned as an accused in the police report. To support his
submission, reliance is placed on the decisions in the case of State of
Gujarat Vs. Afroz Ahmad Hassanfatta; 2019 ALL ACR (Cri) 596 and
Dharampal & Ors Vs. State of Haryana & Anr.; AIR 2013 SCC 3018 . It
is further argued by him that in so far as bar of taking cognizance as
argued by the Ld. Advocate for the applicant is concerned, the
offences alleged are under Sections 337, 354, 509, 107, 109 of the
IPC and as per Section 468 of the Code, the impugned order passed
by the Ld. Metropolitan Magistrate is not beyond the period of
Limitation. Lastly, he prayed that the impugned order is legal,
proper and correct and it requires no interference.

11. It is argued by the Ld. Advocate for respondent No.2­

informant that though there were allegations in the FIR against the
present applicant, the Investigating Officer has dropped his name in
the police report and filed it against only other two accused.
Therefore, the respondent No.2 ­ informant moved the application
(Exh.7) for taking cognizance under Section 190 of the Code and
after hearing the respondent No.2 ­ informant and the Ld. APP for
the State, the Ld. Magistrate has passed the impugned order issuing
summons to the applicant under Section 190 r/w Section 319 of the
Code. It is submitted by him that under Section 190 of Code, the
Magistrate has power to take cognizance of offence against any
person who has not been arraigned as an accused in the police
report, if it appears to the Magistrate that he has committed the
Revision Appln No.49/2022 8

offence, and accordingly, the Magistrate has passed the impugned

order under Section 190 r/w Section 319 of the Code. It is further
submitted that though the order came to be passed under incorrect
provisions of Law, that would not nullify the order. It is further
argued by him that the impugned order passed by the Ld.
Magistrate is legal, proper and correct and it requires no
interference. The Ld. Advocate for the respondent No.2­informant,
therefore, prayed to dismiss the Revision Application. Reliance is
also placed on the following decisions to support the above
submissions :­

1) M/s. Swill Ltd. Vs. the State of Delhi & Anr.; Spl.
Leave Petition (CRL)620 of 2001 decided on
14/08/2001 by the Hon’ble Supreme Court of India.
2) Kishun Singh & Ors. Vs. State of Bihar; Cri. Appeal
No.24 of 2019 decided on 11.01.1993 by the Hon’ble
Supreme Court of India.
3) Collector of Central Excise Vs. Pradyumana Steel Ltd.;
(2003)9 SCC 234 (Supreme Court).
4) M. T. Khan Vs. Govt. of Andhra Pradesh; Appeal
(Civil) No.4 of 2004 (Supreme Court of India).
5) Chetana Shailesh Gurav Vs. Shailesh Atmaram Gurav;
Writ Petition No.1964 of 2019 decided by the Hon’ble
High Court of Judicature at Bombay.
6) Action for Welfare Awakening In Vs. Dy.
Commissioner of Income Tax; 2003(3) ALD 446.
7) Amritlal Vs. Shantilal Soni & Ors.; Cri. Appeal No.301
of 2022 decided by the Hon’ble Supreme Court of
India.
8) Mrs. Sara Mathew Vs. The Institute of Cardio Vascular
disease by its Director Dr. K.M. Cherian & Ors.; Cri.
Appeal No.829 of 2005 decided by the Hon’ble
Supreme Court of India.

12. Having heard the Ld. Advocate for the applicant, Ld.
APP for respondent No.1­the State of Maharashtra and the Ld.
Advocate for the respondent No.2­informant, I have gone through
Revision Appln No.49/2022 9

the record of the case. Concededly, an FIR under Sections 337, 357,
509, 107 of the IPC was registered against the applicant and other
two accused on the basis of the report lodged by the victim. It is not
in dispute that the investigation was carried out and on completion
of the investigation, Police Report came to be filed against the other
two accused. Cognizance of the offence was taken by the Ld.
Magistrate and thereafter, the respondent No.2­informant and the
victim moved application – Ex.7 under Section 190 r/w Section 319
of the Code. By impugned order, the Ld. Magistrate issued
summons to the applicant under Sec.319 r/w 190 of the Code.

13. In this context, it is necessary to extract here the

provisions of Sec. 190 and 319 of the Code.

Section 190 of the Code reads:­

“190. 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
sub­section (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
sub­section (1) of such offences as are within his
competence to inquire into or try.”

Section 319 of the Code reads as :­

319. Power to proceed against other persons

Revision Appln No.49/2022 10

appearing to be guilty of offence :­ (1) Where, in

the course of any inquiry into, or trial of, an offence,
it appears from the evidence that any person not
being the accused has committed any offence for
which such person could be tried together with the
accused, the Court may proceed against such person
for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he
may be arrested or summoned, as the circumstances
of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not
under arrest or upon a summons, may be detained by
such Court for the purpose of the inquiry into, or
trial of, the offence which he appears to have
committed.
(4) Where the Court proceeds against any person
under sub­section (1) then ­
(a) the proceedings in respect of such person
shall be commenced afresh, and the witnesses re­
heard;
(b) subject to the provisions of clause (a), the
case may proceed as if such person had been an
accused person when the Court took cognizance of the
offence upon which the inquiry or trial was
commenced.

14. In so far as the question involved in the present Revision

Application is concerned, judgment of the Hon'ble Constitution
Bench in the case of Dharampal & Ors. Vs. the State of Haryana &
Anr. is relevant wherein questions were formulated for answer by
the Constitution Bench as follows:­

“7.1. Does the Committing Magistrate have any other role to

play after committing the case to the Court of Session on
finding from the police report that the case was triable by the
Court of Session?

7.2. If the Magistrate disagrees with the police report and is

Revision Appln No.49/2022 11

convinced that a case had also been made out for trial against
the persons who had been placed in column 2 of the report,
does he have the jurisdiction to issue summons against them
also in order to include their names, along with Nafe Singh,
to stand trial in connection with the case made out in the
police report?

7.3. Having decided to issue summons against the appellants,

was the Magistrate required to follow the procedure of a
complaint case and to take evidence before committing them
to the Court of Session to stand trial or whether he was
justified in issuing summons against them without following
such procedure?

7.4. Can the Sessions Judge issue summons under Section 193
CrPC as a court of original jurisdiction?

7.5. Upon the case being committed to the Court of Session,

could the Sessions Judge issue summons separately under
Section 193 of the Code or would he have Page 13 to wait till
the stage under Section 319 of the Code was reached in order
to take recourse thereto?

7.6. Was Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC
(Cri) 1554], which set aside the decision in Kishun Singh case
[(1993) 2 SCC 16 : 1993 SCC (Cri) 470] , rightly decided or
not?”

15. As regards the scope of jurisdiction of Magistrate, it was

held by the Hon'ble Constitution Bench in the case of Dharam Pal as
follows:­

“35. In our view, the Magistrate has a role to

play while committing the case to the Court of
Session upon taking cognizance on the police
report submitted before him under Section
173(2) CrPC. In the event the Magistrate
disagrees with the police report, he has two
choices. He may act on the basis of a protest
Revision Appln No.49/2022 12

petition that may be filed, or he may, while

disagreeing with the police report, issue process
and summon the accused. Thereafter, if on
being satisfied that a case had been made out to
proceed against the persons named in column 2
of the report, proceed to try the said persons or
if he was satisfied that a case had been made
out which was triable by the Court of Session,
he may commit the case to the Court of Session
to proceed further in the matter.

36. This brings us to the third question as to the

procedure to be followed by the Magistrate if he
was satisfied that a prima facie case had been
made out to go to trial despite the final report
submitted by the police. In such an event, if the
Magistrate decided to proceed against the
persons accused, he would have to proceed on
the basis of the police report itself and either
inquire into the matter or commit it to the Court
of Session if the same was found to be triable by
the Sessions Court.”

16. The decision in the case of Dharampal (supra) was

followed in another Hon'ble Constitution Bench in the case of
Hardip Singh Vs. State of Punjab and Ors.; (2014)3 SCC 92,
wherein at para No.111, it was observed as follows :­

“111. Even the Constitution Bench in Dharam Pal

(CB) [(2014) 3 SCC 306 : AIR 2013 SC 3018] has
held that the Sessions Court can also exercise its
original jurisdiction and summon a person as an
accused in case his name appears in Column 2 of
the charge­sheet, once the case had been
committed to it. It means that a person whose
name does not appear even in the FIR or in the
charge­sheet or whose name appears in the FIR
and not in the main part of the charge­sheet but in
Column 2 and has not been summoned as an
accused in exercise of the powers under Section
193 CrPC can still be summoned by the court,
provided the court is satisfied that the conditions
Revision Appln No.49/2022 13

provided in the said statutory provisions stand

fulfilled.”
17. From the law laid down in the decisions in the case of
Dharampal (supra) and Hardeep Singh (supra), the Magistrate
taking cognizance of an offence on the basis of the report, under
section 190 of the Code can summon any person as an accused not
arraigned in police report provided conditions are satisfied.

18. In this context, it would be profitable to refer to a recent

pronouncement of the Hon’ble Supreme Court of India in the case
of Nahar Singh Vs State of Uttar Pradesh; Cri. Appeal No.443 of
2022 (arising out of Petition for Spl. Leave to Appeal (Crl)
No.8447 of 2015), wherein same question was before the Hon'ble
Supreme Court of India. In Narhar Singh’s case (Supra), the
mother of the victim had made application under Sec.190 of the
Code to proceed against the person who was not arraigned in the
police report but his name was surfaced in the statement of the
victim recorded under Sec.164 of the Code. The application was
rejected by the Court of the CJM. In Revision, the order passed by
the CJM was set aside and the matter was remanded back to the
CJM for deciding afresh in view of the observations in the order.
Accordingly, the CJM passed the order summoning the petitioner
therein who was not arraigned in the police report. The said order
was assailed in Revision before the Additional Sessions Judge, which
was dismissed by upholding order passed by the CJM. The order
passed by the Sessions Court was challenged before the Hon'ble
High Court of Judicature at Allahabad by filing Cri. Misc. Writ
Petition which was dismissed. The petitioner preferred Cri. Appeal
before the Hon’ble Supreme Court of India. The Hon'ble Supreme
Court of India upholding the order passed by the Hon’ble High Court
Revision Appln No.49/2022 14

observed that Magistrate taking cognizance of an offence on the

basis of the police report in terms of Sec.190(1)(b) of the Code, can
issue summons to any person not arraigned as an accused in the
police report.

19. From the proposition of law in the Hon'ble Constitution

Bench in the case of Dharampal (supra) and Hardeep Singh
(supra) and decision of the Hon'ble Supreme Court of India in the
case of Nahar Singh (supra), it is very clear that the Magistrate
taking cognizance under Sec.190 of the Code can issue summons to
any person who is not arraigned as an accused in the police report.

20. In the instant case also though there are allegations

against the applicant, the Investigating Officer submitted the police
report only against other two accused. Disagreeing with the police
report, the Ld. Magistrate has rightly passed the impugned order
under Sec.190 of the Cr. P. C. issuing summons against the
applicant.

21. It was also the contention of the Ld. Advocate for the
applicant that the impugned order came to be passed under Sec.319
r/w Sec.190 of the Code. However, at this stage Sec.319 of the
Code cannot be pressed into service. Therefore, the impugned order
is not legal, proper and correct. Indisputably, the impugned order
came to be passed under Sec.319 r/w Sec.190 of the Code. In view
of the proposition of law laid down in the Hon’ble Constitution
Bench in the case of Dharampal (supra) and Hardeep Singh
(supra) and decision of the Hon'ble Supreme Court of India in the
Revision Appln No.49/2022 15

case of Nahar Singh (supra), the Magistrate taking cognizance can

issue summons to any person not arraigned as an accused in the
charge­sheet if the conditions are satisfied. Though the Magistrate
has quoted the provisions of Sec.319 of the Code, the impugned
order passed by the Magistrate cannot be said to be illegal as the
Magistrate has taken cognizance against the applicant under Sec.190
of the Code.

22. In so far as bar of taking cognizance after lapse of

period of limitation as argued by the Ld. Advocate for the applicant
is concerned, it is pertinent to point out here that the FIR is
registered for the offences punishable under Sections 337, 354, 509,
107, 109 of IPC. The offence punishable under Sec.354 of the
Indian Penal Code is punishable with imprisonment of either
description for a term which shall not be less than one year but may
extend to five years. Therefore, there is no bar for taking cognizance
against the applicant. The impugned order summoning the applicant
is not beyond the period of limitation.

23. After having considered the law laid down in the case of
Dharampal (supra) and Hardeep Singh (supra) and decision of the
Hon'ble Supreme Court of India in the case of Nahar Singh (supra),
the Magistrate can summoned any person as an accused though he
has not arraigned as an accused in the police report. Therefore, the
impugned order passed by the Magistrate summoning the applicant
is legal, proper and correct. I, therefore, answer point No.1 in the
affirmative.
Revision Appln No.49/2022 16

Point No.2:­

24. In view of finding as to point No.1, the impugned order

passed by the Ld. Magistrate being legal, proper and correct, it
requires no interference. Therefore, point No.2 is answered in the
negative.

Point No.3

25. In view of findings as to point Nos.1 and 2, the

impugned order being legal, proper and correct, the Revision
Application being devoid of merits is liable to be dismissed.

In the result, following order is passed.

ORDER

1. Revision application No.49 of 2022 is dismissed.

2. The order dated 23.02.2022 passed below Ex.3 staying the

impugned order stands vacated.

3. Inform to the Ld. Trial Court accordingly.

4. Accordingly, Revision Application stands disposed off.

Digitally signed
by SIDDHARTHA
NAMDEORAO
SALVE
Date: 2023.11.03
13:39:48 +0530

(S. N. SALVE)
Dt.31.10.2023 Addl. Sessions Judge,
City Civil & Sessions Court,
Borivali Division, Dindoshi, Mumbai
Revision Appln No.49/2022 17

“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL

SIGNED JUDGMENT/ORDER.”

UPLOAD DATE 03.11.2023 Mrs. T. S. Bhogte

AND TIME : 1.35 p.m. NAME OF STENOGRAPHER

Name of the Judge (with Court Room No.) HHJ Shri S. N. Salve
(Court Room No.15)
Date of Pronouncement of Judgment/Order 31.10.2023
Judgment/Order signed by P.O. on 03.11.2023
Judgment/Order uploaded on 03.11.2023