Supreme Court says no bar on power of magistrate or court of session in summoning accused not named in police report

The Supreme Court has held that no authority limits or restricts the power or jurisdiction of the magistrate or court of session in summoning an accused whose name does not feature in the FIR or police report upon taking cognizance.

A two-judge bench of Justices Vineet Saran and Justice Aniruddha Bose said, “Jurisdiction to issue summons can be exercised even in respect of person whose name may not feature at all in the police report, whether as an accused or in column (2) thereof if the magistrate is satisfied that there are materials on record which would reveal prima facie his involvement in the offence.” The Court has expressed its opinion on the question of law, as to 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 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.

While upholding the judgment passed by the High Court of Allahabad which had affirmed the question in the affirmative in its judgement passed on 14th May, 2015, the Apex Court 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.”

While dismissing the appeal of Nahar Singh, who was named by the prosecutrix-victim in her statement made under Section 161 CrPc along side with other co-accused persons named as Yogesh and Rupa for committing the rape, the Apex Court held, “For summoning persons upon taking cognizance of an offence, 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 FIR. A statement made under Section 164 of the Code could also be considered for such purpose.”

The Top Court appreciated the observations of the order of High Court of Allahabad, which had reiterated the principle of criminal jurisprudence that cognizance taken by magistrate is of an offence and not of an offender.

The High Court of Allahabad had held, “It was the duty of the magistrate to find out with respect to the complicity of any person apart from those who were chargesheeted by sifting the corroborative evidence on record. There was clinching evidence supporting the allegations made against persons who have not been charge-sheeted, it was his duty to proceed against such persons as well by summoning them.”

Imperative Part of the Judgment of Allahabad High Court –

The High Court sums up its observations while interpreting section 190(1)(b) CrPC which is extracted from the judgment itself : –

“Summoning of additional accused person is an integral part of the proceedings where allegations of facts constituting an offence is made out for taking cognizance. At the time of taking cognizance, the magistrate has only to see whether prima facie there are cogent reasons for issuing the process. The magistrate is fully competent to take cognizance of an offence and there is no bar under section 190 Cr.P.C. that once the process is issued against some of the accused persons, the magistrate can not issue process to some other person against whom charge sheet was not submitted and against whom there is some material on record.

Constitution Bench judgment vis-a-vis scope of magisterial jurisdictional power

Justice Vineet Saran and Justice Annirudha Bose, referred to Dharam Pal and Ors v. State of Haryana and ANR (2014) 3 SCC 306, wherein a three-judge bench held that after examining the materials, upon satisfaction of magistrate, if a case is made out to proceed against the persons named in column 2 of the police 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.

The brief fact of the case is that mother of the prosecutrix lodged an FIR in Police Station Chhatari, Sub district Shikarpur, District Bulandshahr, Uttar Pradesh about her minor girl being enticed away by accused Yogesh with his two or three associates. However, the age of the girl was found to be 18 years by a radiologist.

The prosecutrix was recovered by the Investigating Officer on 10th May 2012 and her statement under Section 161 was recorded on the same day itself. Prosecutrix disclosed the name of one person named Yogesh who committed rape upon her. The prosecutrix-victim was later produced before ACJM, Bulandshahr for recording her statement under Section 164 CrPC.

Other names of accused Rupa, Yogesh and appellant Nahar Singh were disclosed by prosecutrix who committed rape upon her.

The matter of fact is that prosecutrix did not name Nahar Singh in her 161 statement. By that time, chargesheet was filed, wherein accused Yogesh and Rupa were arrayed as accused persons. Soon thereafter, Chief Judicial magistrate, Bulandshahr took cognizance of the offence of kidnapping (section 363), kidnapping, abducting or inducing woman to compel her marriage (Section 366) and Rape (Section 376) of IPC.

CJM vide order dated 7.11.2012 passed order that there is no ground to summon the appellant Nahar Singh for trial and the application of mother of prosecutrix was dismissed thereafter.

The Revisional Court/Sessions Court set aside the order passed by the CJM, Bulandshahr by which the application of the de facto complainant qua mother of prosecutrix was rejected. Once the matter was remanded back to court of CJM, the learned CJM Court passed order of issuing the summons for trial on 21st February 2015.

The summoning order of CJM was challenged by Nahar Singh by way of filing Criminal Revision Petition before Session Court, Bulandshahr. However, the application of Nahar Singh was dismissed again. Then he, approached the Allahabad High Court.