Supreme Court clarifies power of Magistrate to summon additional accused: Nahar Singh vs. State of Uttar Pradesh (2022) INSC 177 (16 March 2022)

Introduction

Date of the Judgment: 16th March 2022

Citation: (2022) INSC 177

Judges: Justices Vineet Saran and Aniruddha Bose

Can a Magistrate, when taking cognizance of a crime based on a police report, summon individuals not named as accused in the report or in column 2 of the charge sheet? The Supreme Court of India addressed this critical question in a recent criminal appeal. This judgment clarifies the extent of a Magistrate’s power to summon additional individuals as accused based on evidence beyond the initial police report. The bench comprised Justices Vineet Saran and Aniruddha Bose, with the judgment authored by Justice Aniruddha Bose.

Case Background

The case originated from a First Information Report (F.I.R.) filed on 9th May 2012, by a mother in Police Station Chhatari, Uttar Pradesh. She alleged that her minor daughter had been enticed away on 4th May 2012 by Yogesh and his associates. The police investigation led to the recovery of the victim on 10th May 2012, and her statement was recorded under Section 161 of the Code of Criminal Procedure, 1973 (CrPC).

Subsequently, on 14th May 2012, the victim’s statement under Section 164 of the CrPC was recorded before the Additional Chief Judicial Magistrate, Bulandshahr. In this statement, she named Yogesh, Rupa, and Nahar Singh (the appellant) as the individuals who had raped her. However, in her initial statement under Section 161 of the CrPC, Nahar Singh’s name was not mentioned.

The police submitted a charge sheet naming only Yogesh and Rupa as accused. On 8th August 2012, the Chief Judicial Magistrate (CJM), Bulandshahr, took cognizance of offences under Sections 363, 366, and 376 of the Indian Penal Code, 1860 against Yogesh and Rupa. The victim’s mother then filed an application requesting the court to summon Nahar Singh, arguing that he was also involved in the crime.

Timeline

Course of Proceedings

The Chief Judicial Magistrate (CJM) initially dismissed the application to summon Nahar Singh on 7th November 2012. The de facto complainant then filed a revision petition before the Sessions Judge, who set aside the CJM’s order on 13th January 2015 and directed the CJM to reconsider the summoning of Nahar Singh.

On remand, the CJM ordered Nahar Singh to be summoned for trial on 5th February 2015. Nahar Singh challenged this order in a revision petition, which was dismissed by the Sessions Judge on 20th April 2015. Subsequently, Nahar Singh filed a Criminal Miscellaneous Writ Petition before the High Court of Judicature at Allahabad, arguing that the CJM’s order under Section 190(1)(b) of the CrPC was not permissible since his name was not in the charge sheet.

The High Court dismissed the writ petition on 14th May 2015, affirming the CJM’s power to summon additional accused persons based on material evidence, even if they were not named in the chargesheet. The High Court relied on the principle that cognizance is taken of the offence, not the offender, and that the Magistrate must consider all evidence to determine the complicity of any person.

Legal Framework

The core legal provision in question is Section 190 of the Code of Criminal Procedure, 1973, which outlines how Magistrates take cognizance of offences. The section states:

“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 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.”

This section allows a Magistrate to take cognizance of an offence based on a complaint, a police report, or other information. The key issue here is whether the Magistrate’s power under Section 190(1)(b) is limited to only those named in the police report or if it extends to others whose involvement is evident from other materials.

Additionally, Section 193 of the CrPC, regarding cognizance of offences by Courts of Session, is also relevant:

“193. Cognizance of offences by Courts of Session.
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”

This provision specifies that a Court of Session can only take cognizance of an offence if the case has been committed to it by a Magistrate, except as otherwise provided.

Arguments

The appellant, Nahar Singh, argued that the Chief Judicial Magistrate (CJM) could not have summoned him under Section 190(1)(b) of the CrPC because his name was not included in the police report or chargesheet. He contended that he could only be summoned under Section 319 of the CrPC, which deals with adding accused persons during an inquiry or trial.

• Appellant’s Main Submission: The Magistrate’s power to summon an accused under Section 190(1)(b) of the CrPC is limited to those named in the police report or chargesheet.
  • Sub-argument 1: Since the appellant’s name was not in the chargesheet, he could only be summoned under Section 319 CrPC during the inquiry or trial.
  • Sub-argument 2: The CJM’s order to summon him was therefore illegal and beyond the scope of Section 190(1)(b) of the CrPC.

The respondent, the State of Uttar Pradesh, argued that the Magistrate’s power under Section 190(1)(b) extends to summoning any person whose involvement in the offence is apparent from the evidence, even if they are not named in the police report. The State relied on the principle that cognizance is taken of the offence, not the offender, and that the Magistrate has a duty to identify all offenders.

• Respondent’s Main Submission: The Magistrate’s power under Section 190(1)(b) of the CrPC is not limited to those named in the police report or chargesheet.
  • Sub-argument 1: The Magistrate has a duty to identify all offenders based on the available evidence.
  • Sub-argument 2: The victim’s statement under Section 164 CrPC provided sufficient material to summon the appellant.
  • Sub-argument 3: The Magistrate’s order was a valid exercise of his power under Section 190(1)(b) of the CrPC.

The State also argued that the High Court had correctly relied on the decision in SWIL Ltd. vs. State of Delhi and Another [(2001) 6 SCC 670], which held that a Magistrate could summon additional accused persons based on materials on record, even if they were not named in the charge sheet.

The innovativeness in the argument by the respondent was that the Magistrate’s power to summon an accused under Section 190(1)(b) is not limited to those named in the police report or chargesheet, but extends to anyone whose involvement is evident from the available evidence. This interpretation emphasizes the Magistrate’s duty to ensure that all offenders are brought to justice, even if they were not initially named by the police.

Issues Framed by the Supreme Court

The Supreme Court addressed the following issue:

1. Whether a Magistrate taking cognizance of an offence on the basis of a police report under Section 190(1)(b) of the Code of Criminal Procedure, 1973, 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.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court:

• The Supreme Court followed SWIL Ltd. vs. State of Delhi and Another [(2001) 6 SCC 670], which held that a Magistrate could summon additional accused persons based on materials on record, even if they were not named in the charge sheet.
• The Supreme Court followed Dharam Pal and Others vs. State of Haryana and Another [(2014) 3 SCC 306], which clarified the Magistrate’s role in committing cases to the Court of Session and the power to summon persons named in column 2 of the charge sheet.
• The Supreme Court followed Hardeep Singh vs. State of Punjab and Others [(2014) 3 SCC 92], which held that the Sessions Court can exercise its original jurisdiction to summon a person as an accused if their name appears in column 2 of the charge sheet.
• The Supreme Court followed Kishun Singh & Others vs. State of Bihar [(1993) 2 SCC 16], which stated that once cognizance of an offence is taken, it is the court’s duty to find out who the offenders are and proceed against them.
• The Supreme Court followed Raghubans Dubey vs. State of Bihar [AIR 1967 SC 1167], which stated that once cognizance of an offence is taken, it is the court’s duty to find out who the offenders really are and proceed against them.
• The Supreme Court overruled Raj Kishore Prasad vs. State of Bihar and Another [(1996) 4 SCC 495], which held that power under Section 209 of the Code to summon a new offender was not vested with a Magistrate. This was overruled as it was inconsistent with the principle that cognizance is taken of the offence and not the offender.

What weighed in the mind of the Court?

The Supreme Court emphasized the principle that when a Magistrate takes cognizance of an offence, it is the offence itself that is being considered, not just the individuals named by the police. The Court highlighted the Magistrate’s duty to ensure that all those involved in the commission of the crime are brought to justice. This duty is not limited to only those whose names appear in the police report or charge sheet.

The Court noted that the Magistrate must examine all available materials, including statements recorded under Section 164 of the CrPC, to determine the complicity of any person. The Court also underscored that the power to summon additional accused persons is an integral part of the proceedings initiated by taking cognizance of the offence. The Court also observed that the Magistrate is not bound by the findings of the Investigating Officer and can proceed against any person if there is evidence to suggest their involvement in the crime.

Logical Reasoning:

Key Takeaways

• A Magistrate, while taking cognizance of an offence based on a police report, is not limited to summoning only those named in the report or in column 2 of the charge sheet.
• The Magistrate has the power to summon any person whose involvement in the offence is evident from the available evidence, including statements recorded under Section 164 of the CrPC.
• The principle that cognizance is taken of the offence and not the offender, allows the Magistrate to ensure that all offenders are brought to justice.
• The Magistrate’s duty to identify all offenders is an integral part of the proceedings initiated by taking cognizance of the offence.

Directions

The Supreme Court dismissed the appeal and affirmed the High Court’s judgment, upholding the Magistrate’s order to summon Nahar Singh.

Development of Law

The ratio decidendi of this case is that a Magistrate, while taking cognizance of an offence based on a police report, is not limited to summoning only those named in the report or in column 2 of the charge sheet. The Magistrate has the power to summon any person whose involvement in the offence is evident from the available evidence, including statements recorded under Section 164 of the CrPC. This judgment reaffirms and clarifies the principle that cognizance is taken of the offence and not the offender. It also reinforces the Magistrate’s duty to ensure that all those involved in the commission of the crime are brought to justice. This is not a change in the previous position of law, but rather a reaffirmation and clarification of existing principles.

Conclusion

The Supreme Court’s decision in Nahar Singh vs. State of Uttar Pradesh clarifies that a Magistrate’s power to summon additional accused persons is not restricted to those named in the police report or column 2 of the charge sheet. The Magistrate can summon any person whose involvement is evident from the available materials, including statements under Section 164 of the CrPC. This judgment reinforces the principle that cognizance is taken of the offence, not just the offender, and ensures that all those involved in a crime are brought to justice.