Samyak Jain

Published on: 10 September 2022 at 22:25 IST

The Supreme Court recently, in the case of Nahar Singh Vs. State of Uttar Pradesh^[1] held that a Magistrate can issue summons to a person not named in either the First Information Report (FIR) or in the Chargesheet. Section 190 of the Criminal Procedure Code states that

“Any magistrate of the first class or any magistrate of the second class specifically authorised
in this regard under subsection (2) may take cognizance of any matter subject to the
requirements of this Chapter (a) upon receiving a complaint of the facts constituting the
offence; (b) Upon receiving information from a source other than a police officer regarding a
police report of such facts; (c) Upon learning that such an offence has been committed from
an officer or his or her representative.”

It simply gives the magistrate the authority to take cognisance of the offence, and after doing so, it gives the magistrate the authority to check to see if there are any other accused parties except the one named in the FIR and Chargesheet, and to summon them.

According to the FIR filed by the mother of the prosecutrix, there were initially two accused in the current case, namely Yogesh and Rupa. However, the identity of the current appellant, Nahar Singh, surfaced following the prosecutrix’s statements.

The Chief Judicial Magistrate then heard the case and ordered that the accused be called to court. The appellant appealed this ruling by submitting a Criminal Miscellaneous Writ petition to the High Court of Allahabad.

In its ruling on the appeal filed on May 14, 2015, the High Court emphasised the long-standing principle of criminal law that an offence is committed when a magistrate takes note of it. The High Court ruled that in order to ascertain whether anyone else other than those named in the chargesheet was involved, the magistrate had an obligation to review the corroborating evidence that was on file.

If the magistrate decided that there was convincing evidence to support the accusations made against those who are accountable for taking action against these people as well,

Regarding the point of law, the HC had relied on the SC judgement in SWIL Ltd. vs. State of Delhi and Another^[2] . In this case, it was argued that once the process is initiated against some accused, it cannot be started against another accused whose material is on record.

Furthermore, it is not possible in this situation to refer to the provisions of Section 319 CrPC. A provision of this nature shall apply during any investigation or prosecution for an offense.In this case, neither the magistrate’s inquiry nor the trial were conducted in accordance with Section 2(g) of the CrPC. He was declaring an offence to have occurred using his Section 190 authority.

In some decisions, opposing viewpoints have been held. For example, in Ranjit Singh v. State of Punjab^[3], it was determined that from the point of committal until the Sessions Court reached the stage described in Section 230 of the Code, that court could only deal with the accused mentioned in Section 209 of the Code and that there was no intermediate stage that would have allowed the Sessions Court to add any additional defendants to the list of accused before that point.

However, it was decided that the session court has the authority to summon the accused in the case of Kishun Singh v. State of Bihar^[4]

A constitution bench hearing Dharam Pal and others vs. the State of Haryana and another has put an end to this dispute. If the magistrate disagrees with the police report and is convinced that a case has also been made out for trial against them, does he or she have the authority to issue summonses against the individuals listed in column 2 of the police report in order to include their names, along with Nafe Singh’s, to stand trial in connection with the case made out in the report?

In order to decide the scope of jurisdiction to issue summons, the SC affirmed the view of the Kishun Singh case and held that Magistrate has a duty to review the police report presented to him pursuant to Section 173(2) CrPC. If the magistrate rejects the police report, he has two choices. Despite his disagreement with the police report, he may nevertheless issue process and call the accused if a protest petition is lodged.

Then, if he believed a case had been made out against the individuals named in column 2 of the report, he could either try those people or commit the case to the Court of Session for further action.

Another Constitution Bench in Hardeep Singh Vs. State of Punjab and Others^[5] affirmed the view of the Dharam Pal case and emphasised that a person whose name does not appear in the FIR or the charge-sheet, or whose name appears in the FIR but not in the main part of the charge-sheet but in Column 2, may still be summoned by the court if the court is satisfied that the conditions outlined in the aforementioned statutory provisions are fulfilled. This is done in the exercise of the powers under Section 193 CrPC.

We have previously stated that the Magistrate may exercise his or her jurisdiction to issue a summons even in respect of a person whose name may not appear 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 file which would prima facie reveal the person’s involvement in the offence.

Without any constraints or restrictions from any agencies, the Magistrate or Court of Session may summon an accused individual upon taking cognizance even if their name does not appear in the F.I.R. or police report. Therefore, the Magistrate has the power to issue summons to the accused even if his name is not in the FIR or Chargesheet or both.

Author: Article is written by Samyak Jain, a student pursuing BALLB (Hons.) (second year) from National Law Institute University, Bhopal.

References

1. (Arising out of Petition for Special Leave to Appeal (Crl.) No.8447 OF 2015) ↑
2. [(2001) 6 SCC 670] ↑
3. 1959 AIR 843, 1959 SCR Supl. (2) 727 ↑
4. Criminal appeal No. 24 of 1992 ↑
5. [(2014) 3 SCC 92] ↑