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The Supreme Court on Wednesday clarified that a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190 (1)(b) of The Code of Criminal Procedure, 1973 (the Code) can issue summons to any person not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report.

Relying on the dictum in Raghubans Dubey vs. State of Bihar, SWIL Ltd. vs. State of Delhi and Dharam Pal and Others vs. State of Haryana and Another wherein the power or jurisdiction of the Court or Magistrate taking cognizance of an offence on the basis of a police report to summon an accused not named in the police report, before commitment had been analysed, the court noted,

"The uniform view on this point, irrespective of the fact as to whether cognizance is taken by the Magistrate under Section 190 of the Code or jurisdiction exercised by the Court of Session under Section 193 thereof is that the aforesaid judicial authorities would not have to wait till the case reaches the stage when jurisdiction under Section 319 of the Code is capable of being exercised for summoning a person as accused but not named as such in police report."

A bench of Justices Aniruddha Bose and Vineet Saran further noted that none of the authorities limit or restrict the power or jurisdiction of the Magistrate or Court of Session in summoning an accused upon taking cognizance, whose name may not feature in the F.I.R. or police report.

In the case before Court, one Nahar Singh, the appellant, was not named in the First Information Report.

The Allahabad High Court in the impugned order had opined that Nahar Singh could be summoned even though his name was not mentioned in the FIR.

Factual Matrix:

The Chief Judicial Magistrate (CJM), Bulandshahr, Uttar Pradesh had taken cognizance of offences under Sections 363, 366 and 376 of the Indian Penal Code, 1860 on the basis of police report which had named two individuals as accused-Yogesh and Rupa.

The police report was made on the basis of an F.I.R made by the mother of a lady victim (prosecutrix) wherein she stated that her minor daughter was enticed away by said Yogesh and his two or three associates.

Later on, a radiologist on the basis of x-ray had found the victim to be a major, aged about 18 years. The Investigating Officer recovered the prosecutrix and her statement under Section 161 of CrPC. 

In her statement, the prosecutrix stated that Yogesh had committed rape upon her. She was then produced before the Additional Chief Judicial Magistrate, Bulandshahr and her statement under Section 164 of CrPC was recorded wherein she disclosed the names of the accused Rupa, Yogesh as also the appellant-Nahar Singh, as the persons who had committed rape upon her.

When CJM, Bulandshahr took cognizance of offence under Sections 363, 366 and 376 of the 1860 Code against accused Yogesh and Rupa, the mother of the victim filed an application before the Court of the CJM praying for an order requiring appearance of Nahar Singh before the Court. 

CJM denied this application, but the revisional court of the Sessions Judge set aside such order and directed the CJM to pass a lawful order to summon Nahar Singh in the matter.

Court's Analysis:

Relying on Dharam Pal, the top court noted that in the event the Magistrate disagreed with the police report, he may act on the basis of a protest petition that may be filed and commit the case to the Court of Session. This power of the Magistrate was held to be not exercisable only in respect of persons whose names appear in column (2) of the chargesheet, apart from those who are arraigned as accused in the police report.

In the subject-proceeding, noting that the Magistrate acted on the basis of an independent application filed by the de facto complainant, the bench said,

"If there are materials before the Magistrate showing complicity of persons other than those arraigned as accused or named in column 2 of the police report in commission of an offence, the Magistrate at that stage could summon such persons as well upon taking cognizance of the offence."

For summoning persons upon taking cognizance of an offence, the court clarified that the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence.

These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of the Code could also be considered for such purpose, held the court.

With this view, the court found no error in the order of the Magistrate, which was affirmed by the High Court. Thus, it affirmed the judgment under appeal while dismissing the appeal.

Case Title: NAHAR SINGH v. THE STATE OF UTTAR PRADESH & ANR.