Magistrate can summon a person not arraigned in the police report – Apex Court

Apex court decided the question in recent judgment (NAHAR SINGH Vs STATE OF UTTAR PRADESH & ANR. D.D 16 March 2022) whether a Magistrate taking cognizance of an offence based on 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. The High Court of Judicature at Allahabad has opined on this question in the affirmative in the judgment and same was challenged in Apex court.

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 (1860 Code) on 8th August 2012 on the basis of police report. The police report 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) on 9th May 2012 in Police Station Chhatari, sub-district Shikarpur in the district of Bulandshahr, Uttar Pradesh. In her initial statement recorded under Section 161 of the Code, the name of Nahar Singh did not figure. The chargesheet was submitted subsequently, in which Yogesh and Rupa were arraigned as accused. The victim when produced before the ACJM, Bulandshahr and her statement under Section 164 of the Code was recorded on 14th May 2012.  In that statement, she had disclosed the names of the accused Rupa, Yogesh as also the appellant herein-Nahar Singh, as the persons who had committed rape upon her.

The de facto complainant, being mother of the victim thereafter had filed an application before the Court of the CJM praying for an order requiring appearance of the appellant before the Court. CJM found that there was no ground to summon the appellant for trial and the said application was dismissed. De facto complainant filed revision to session court. And same was set aside and remanded back to CJM and ordered to pass lawful order. After that CJM summoned the appellant Nahar Singh and appellant approach session court against the summoning order but same was dismissed. After that Appellant approached the High Court but same was dismissed.

Appellant Nahar Singh approached the Apex Court, it has been observed that the power of the Magistrate is 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. The Magistrate could summon such persons as well upon taking cognizance of the offence.

Apex Court held that 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 F.I.R.  A statement made under Section 164 of the Code could also be considered for such purpose.  Appeal Dismissed.

D.D: - 16 March, 2022  

Nahar singh versus The state of Uttar Pradesh & Anr