NAHAR SINGH versus THE STATE OF UTTAR PRADESH & ANR.

NAHAR SINGH

THE STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 443 of 2022)

MARCH 16, 2022

[VINEET SARAN AND ANIRUDDHA BOSE, JJ.]

Code of Criminal Procedure, 1973: ss.164, 190(1)(b), 209,319 – Power of Magistrate taking cognizance of an offence on thebasis of police report in terms of s.190 (1)(b) CrPC to issuesummons to any person not arraigned as an accused in the policereport and whose name also not featuring in column (2) of suchreport – Held: If there are materials before the Magistrate showingcomplicity of persons other than those arraigned as accused ornamed in column 2 of the police report in commission of an offence,the Magistrate at that stage can summon such persons as well, upontaking cognizance of the offence – statement made under s.164of the Code could also be considered for such purpose.

Dismissing the appeal, the Court

HELD: 1. None of the authorities limit or restrict the poweror jurisdiction of the Magistrate or Court of Session in summoningan accused upon taking cognizance, whose name may not featurein the F.I.R. or police report. [Para 20][812-D]

Dharam Pal and Others v. State of Haryana and Another(2014) 3 SCC 306 : [2013] 13 SCR 1052; HardeepSingh v. State of Punjab and Others (2014) 3 SCC 92 :[2014] 2 SCR 1; Raghubans Dubey v. State of BiharAIR 1967 SC 1167 : [1967] 2 SCR 423 – followed.

2. In the present case, the name of the accused hadtranspired from the statement made by the victim under Section164 of the Code.In the subject-proceeding, the Magistrate actedon the basis of an independent application filed by the de factocomplainant. If there are materials before the Magistrate showingcomplicity of persons other than those arraigned as accused or

Anamed in column 2 of the police report in commission of an offence,the Magistrate at that stage could summon such persons as wellupon taking cognizance of the offence. For summoning personsupon taking cognizance of an offence, the Magistrate has toexamine the materials available before him for coming to theconclusion that apart from those sent up by the police some otherBpersons are involved in the offence. These materials need notremain confined to the police report, charge sheet or the F.I.R. Astatement made under Section 164 of the Code could also beconsidered for such purpose.Turning to the facts of the presentcase, there is no error in the order of the Magistrate, which wasCaffirmed by the High Court. [Paras 21 & 22][812-E-H; 813-A-B]SWIL Ltd. v. State of Delhi and Another (2001) 6 SCC670 : [2001] 1 Suppl. SCR 527; Raj Kishore Prasad v.State of Bihar and Another (1996) 4 SCC 495 : [1996]2 Suppl. SCR 125; Kishun Singh & Others v. State ofDBihar (1993) 2 SCC 16 : [1993] 1 SCR 31; Nisar andAnother v. State of U.P. (1995) 2 SCC 23 : [1994] 5Suppl. SCR 368; Balveer Singh and Another v. State ofRajasthan and Another (2016) 6 SCC 680 : [2016] 2SCR 504; P.C. Gulati v. Lajya Ram and Others AIR1966 SC 595 : [1966] 1 SCR 560 – referred to.E

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.443 of 2022.

From the Judgment and Order dated 14.05.2015 of the High Courtof Judicature at Allahabad in Criminal Misc. Writ Petition No.11538 of2015.

S. N. Jha, Sr. Adv., Santosh Kumar Mishra, Ms. Pappy Jha, PremPrakash, Advs. for the Appellant.

Rajan Kumar Chourasia, Sarvesh Singh Baghel, ArdhendumauliKumar Prasad, Apoorv Kurup, Prashant Singh, Ashish Madaan, Ms.Nidhi Mittal, Advs. for the Respondents.

The Judgment of the Court was delivered by

ANIRUDDHA BOSE, J.

1. Leave granted.

2. The question which we shall be addressing in this appeal iswhether Magistrate taking cognizance of an offence on the basis of apolice report in terms of Section 190 (1)(b) of The Code of CriminalProcedure, 1973 (the Code) can issue summons to any person notarraigned as an accused in the police report and whose name also doesnot feature in column (2) of such report. In this case the person concerned,being the appellant, was not named in the First Information Report either.The High Court of Judicature at Allahabad has opined on this question inthe affirmative in the judgment delivered on 14[th] May, 2015. This judgmentis under appeal before us. The Chief Judicial Magistrate (CJM),Bulandshahr, Uttar Pradesh had taken cognizance of offences underSections 363, 366 and 376 of the Indian Penal Code, 1860 (1860 Code)on 8[th] August, 2012 on the basis of police report. These are offencestriable before Court of Session. The police report had named twoindividuals as accused-Yogesh and Rupa (the spelling of the name of thelatter has been interchangeably used in different proceedings emanatingfrom the First Information Report (F.I.R.) as Roopa and Rupa). Thepolice report was made on the basis of an F.I.R made by the mother ofa lady victim (prosecutrix) on 9[th] May, 2012 in Police Station Chhatari,sub-district Shikarpur in the district of Bulandshahr, Uttar Pradesh. Inthis F.I.R, she stated that on 4[th] May, 2012, her minor daughter wasenticed away by said Yogesh and his two or three associates. Later on,a radiologist on the basis of x-ray had found her to be major, agedabout 18 years. But the age-issue of the victim is not in controversyinvolved in this appeal.

A3. The Investigating Officer recovered the prosecutrix on 10[th] May,2012. Her statement under Section 161 of the Code was recorded on 10[th]May itself. In her statement, in substance, she stated that Yogesh hadcommitted rape upon her. The victim was, thereafter, produced before theAdditional Chief Judicial Magistrate, Bulandshahr and her statement underSection 164 of the Code was recorded on 14[th] May, 2012. In that statement,Bshe had disclosed the names of the accused Rupa, Yogesh as also theappellant herein-Nahar Singh, as the persons who had committed rapeupon her. Her statement, inter-alia, was recorded in the following terms:-

“It is an incident of 02.5.2012. It was 12 O’clock in the day. I wasstanding at the bus stand at that time. Two persons Rupa andCYogesh were standing there. Both of them forcibly took me toPahasu. Both of them telephoned Nahar Singh there. He camethere with vehicle and all of them made me sit in that fourwheeler vehicle and took me from there to Khurja. After closingthe vehicle all of them took turns of rape on me. Thereafter, all ofDthem consumed liquor and also forcibly made me drink liquor byputting it in Pepsi. Then again all of them forcibly raped me andthreatened me if you may not live as wife of Yogesh we will ruinyour family. These people made me unconscious and dressed mein bangles, Bichhia and also filled my Maang and left me atKamauna. I want to go with my father and mother.”

(quoted verbatim from the copy of the statement as annexedto the paperbook)

4. In her initial statement recorded under Section 161 of the Code,the name of Nahar Singh did not figure. The chargesheet was submittedFsubsequently, in which Yogesh and Rupa were arraigned as accusedpersons. On 8[th] August, 2012, the CJM, Bulandshahr took cognizance ofoffence under Sections 363, 366 and 376 of the 1860 Code againstaccused Yogesh and Rupa. The de facto complainant, being mother ofthe victim thereafter had filed an application before the Court of theCJM in Criminal Case No. 102/2012 praying for an order requiringGappearance of the appellant before the Court. In this application, it wasinter-alia, stated:-

“Accused Yogesh and Rupa are in judicial custody of the DistrictJail. Accused Nahar Singh is not arrested. Accused Nahar Singhhas threatened the complainant and her family for number of times

that they may withdraw the case against him otherwise he willimplicate them in any false case. In this regard the complainanthas submitted application before the Police Officers for arrest ofNahar Singh and for the safety and security of her family.

Thereafter, the investigation of this case is transferred from PS:Chhattari to PS: Dibai. The Investigating Officer of PS: Dibaididn’t conduct impartial investigation. Despite having sufficientevidence against accused Nahar Singh the charge sheet is notsubmitted and the name of Nahar Singh is deleted whereasaccused Rupa and Nahar Singh have committed an offence ofrape with xxxx against her consent, as is evident from statementrecorded under sections 161 and 164 Cr.P.C. There are sufficientgrounds in the case diary to summon accused Nahar Singh in thematter. The complainant and her daughter had also given statementbefore the I.O. of PS: Dibai for commission of offence of rap byNahar Singh. As per the provisions of Section 190 Cr.P.C. thecourt takes cognizance for the offence and not for the accused.

Therefore, it is prayed that this Hon’ble Court may pass an orderagainst accused Nahar Singh son of Megh Singh, resident of villageWaan, PS: Chhattari to appear before the court. I shall be gratefulto you.”

(quoted verbatim from the copy of the application asannexed to the paperbook. Name of the victim has beenmasked with xxxx)

5. In an order passed on 7[th] November, 2012, the CJM found thatthere was no ground to summon the appellant for trial and the saidapplication was dismissed. The file was directed to be presented forcommitment on 16[th] November, 2012. Against this order, the de factocomplainant invoked the revisional jurisdiction of the Sessions Judge.Her application was registered as Criminal Revision No.588/2012 andwas listed before Additional District and Sessions Judge Court No. 1,Bulandshahr. We find from the order of the Revisional Court passed on13[th] January, 2015 that investigation of this case was transferred fromthe first Investigating Officer of police station Chhatari to the Inspectorin-charge of Police Station, Dibai, Shri Ashok Kumar Yadav. There wasthus, change of the police station also. The chargesheet was submittedby the latter on the basis of which cognizance was taken. In the aforesaid

Aorder, the sequence of events showing the trajectory of the investigationwas recorded by the Revisional Court in the following manner:-

“After the recovery of the daughter of the complainant the I.O.recorded her statement on 10.5.2012 under Section 161 Cr.P.C.Accused xxxx mentioned the name of accused Yogesh only inher statement whom she has stated to have induced and abductedher. Thereafter, the statement of the abducted was recorded underSection 164 Cr.P.C. on 14.5.2012 before the Magistrate whereinthe victim stated that other than Yogesh two more persons beingRupa and Nahar Singh were involved in the offence. Whilementioning the aforesaid statement made under section 164 Cr.P.C.on 19.50.2012 in Case Diary the I.O. added section 376(g) I.P.C.as two more persons being Rupa and Nahar Singh were implicatedin the offence. Upon adding section 376(g) in the matter the thenS.H.O. Harish Vardhan Singh took over the investigation andrecorded the statements of the brother of the victim Sonu son ofSh. Ramesh Chand resident of villag Waan and another personBoby son of Babu Lal resident of village Waan on 3.6.2012. Boththe witnesses substantiated the occurrence of incident. It appearsfrom the perusal of records that on an application of proposedaccused Nahar Singh the Superintendent of Police, Bulandshehartransferred the investigation from Police Station Chhattari to PoliceStation Dibai on 14.6.2012 and entrusted the investigation to I.O.Ashok Kumar. The aforesaid Ashok Kumar Yadav, the in-chargeInspector of Police Station Dibai, during the investigation, againrecorded the statements of victim xxxx, her mother Smt. Kamlesh,complainant under Section 161 Cr.P.C and concluded that NaharSingh son of Sh. Megh Singh resident of village Waan had no rolein the abduction of xxxx nor he committed any offence like rapewith her. He was implicated by complainant and the opposite partyof Nahar Singh only due to enmity in the village. As result, theI.O. filed charge sheet against the nominated accused Yogeshand co-accused Rupa.”

(quoted verbatim from the copy of the Revisional Court’sjudgment as annexed to the paperbook. Name of the victimhas been masked with xxxx)

6. The Revisional Court set aside the order passed by the CJM on7[th] November, 2012 by which the application of the de facto complainant

was rejected. The matter was remanded to the Court of the CJM andthe latter was directed to dispose of the said application in view of theobservations made in the judgment of the Revisional Court. It was alsoobserved in the order of the Revisional Court that the Magistrate shouldpass lawful order to summon the accused, Nahar Singh in the matter.This order was passed on 13[th] January, 2015.

7. Thereafter, the CJM heard the matter on remand and in an orderpassed on 5[th] February 2015, Nahar Singh (the appellant) was directed tobe summoned for trial on 21[st] February, 2015. This order of the CJM waschallenged by the appellant by filing Criminal Revision Petition beforethe Sessions Judge, Bulandshahr. By decision delivered on 20[th] April,2015, the revisional application was dismissed. Against this order ofdismissal, the appellant approached the High Court of Judicature atAllahabad by filing Criminal Miscellaneous Writ Petition bearing No.11538/2015. Before the High Court, apart from other points, it was arguedthat exercise of jurisdiction by the CJM, under Section 190 (1)(b) of theCode was impermissible in the subject case. The appellant’s case wasthat as he had not been named as accused in the chargesheet, he couldonly be summoned in exercise of jurisdiction under Section 319 of theCode. Such submissions have been recorded in the judgment under appeal.

Section 190 of the Code reads:-

“190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate ofthe first class, and any Magistrate of the Second class speciallyempowered in this behalf under sub-section (2), may takecognizance of any offence-

(a)Upon receiving complaint of facts which constitutesuch offence;

(b)Upon police report of such facts;

(c)Upon information received from any person otherthan police officer, or upon his own knowledge,Gthat such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrateof the second class to take cognizance under sub-section (1)of such offences as are within his competence to inquire intoor try.”

A8. In the judgment under appeal delivered on 14[th] May, 2015, theHigh Court reiterated the well established principle of criminaljurisprudence that cognizance taken by the Magistrate is of an offenceand not of an offender. The High Court held that it was the duty of theMagistrate to find out with respect to the complicity of any person apartfrom those who were chargesheeted by sifting the corroborative evidenceBon record. In case the Magistrate came to the conclusion that there wasclinching evidence supporting the allegations made against persons whohave not been chargesheeted, it was his duty to proceed against suchpersons as well by summoning them. It was, inter-alia, held by the HighCourt in the judgment under appeal:-

“The summoning of additional accused person is an integral partof the proceedings where allegations of facts constituting anoffence is made out for taking cognizance. At the time of takingcognizance, the Magistrate has only to see whether prima faciethere are cogent reasons for issuing the process. The Magistrateis fully competent to take cognizance of an offence and there isno bar under section 190 Cr.P.C. that once the process is issuedagainst some of the accused persons, the Magistrate can not issueprocess to some other person against whom charge sheet wasnot submitted and against whom there is some material on record.The investigation was transferred at the instance of the accusedpersons who did not have any locus to direct the investigation tobe transferred from one police station to another police station.Only when the investigation was transferred to another policestation on further investigation the witnesses were re-examinedunder section 161 Cr.P.C pursuant to which the charge sheet wassubmitted against Yogesh and Roopa. Section 376(g) IPC wasalso added after recording the statement of the victim recordedunder section 164 Cr.P.C which is public document but theinvestigating officer did not seriously show or attach any importanceto the statement recorded under section 164 Cr.P.C before thecourt and proceeded to exonerate the applicant which clearly showthe manner in which the investigation was done by Sri HarshVardhan, the investigating officer on the direction ofS.S.P.Bulandshahar. The mere fact that the statement of the victimwas subsequently recorded will not overshadow the statementrecorded under section 164 Cr.P.C. The victim cannot be treated

with suspicion or discredited that she had not disclosed thecomplicity of the applicant in her statement under section 161Cr.P.C.”

(quoted verbatim from the copy of the impugned judgmentas annexed to the paperbook)

9. As regards the point of law with which we are dealing with inthis appeal, in the impugned judgment, the High Court had relied ondecision of Coordinate Bench of this Court in the case of SWIL Ltd.vs. State of Delhi and Another [(2001) 6 SCC 670]. In this decision,argument was advanced that under Section 190 of the Code, onceprocess is issued against some accused, the Magistrate cannot issueprocess to any other accused against whom there might be materials onrecord. Such argument was repelled. It was held by the CoordinateBench in this case:-“7. Further, in the present case, there is no question of referringto the provisions of Section 319 CrPC. That provision would comeinto operation in the course of any enquiry into or trial of an offence.In the present case, neither the Magistrate was holding enquiryas contemplated under Section 2(g) CrPC nor had the trial started.He was exercising his jurisdiction under Section 190 of takingcognizance of an offence and issuing process. There is no barunder Section 190 CrPC that once the process is issued againstsome accused, on the next date, the Magistrate cannot issueprocess to some other person against whom there is some materialon record, but his name is not included as accused in the charge-sheet.”

10. There was divergence of views of different Benches of thisCourt on this point and ultimately the issue has been settled by aConstitution Bench in the case of Dharam Pal and Others vs. Stateof Haryana and Another [(2014) 3 SCC 306]. Before dealing with theratio of this decision, we shall narrate the journey of the legal dispute tothat stage, which has been recorded in the judgment of Dharam Pal(supra) itself by the Constitution Bench:-

“1. This matter was initially directed to be heard by Bench ofthree Judges in view of the conflict of opinion in the decisions oftwo two-Judge Benches, in Kishori Singh v. State of Bihar,[(2004) 13 SCC 11: (2006) 1 SCC (Cri) 275]; Rajinder

Prasad v. Bashir [(2001) 8 SCC 522: 2002 SCC (Cri) 28]and SWIL Ltd. v. State of Delhi, [(2001) 6 SCC 670: 2001 SCC(Cri) 1205]. When the matter was taken up for consideration bythe three-Judge Bench on 1-12-2004 [Dharam Pal v. State ofHaryana, (2004) 13 SCC 9: (2006) 1 SCC (Cri) 273], it wasbrought to the notice of the Court that two other decisions had adirect bearing on the question sought to be determined. The firstis Kishun Singh v. State of Bihar, [(1993) 2 SCC 16: 1993 SCC(Cri) 470], and the other is decision of three-Judge Benchin Ranjit Singh v. State of Punjab, [(1998) 7 SCC 149: 1998SCC (Cri) 1554].

2. Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri) 1554]disapproved the observations made in Kishun Singh case [(1993)2 SCC 16 : 1993 SCC (Cri) 470] which was to the effect that theSessions Court has power under Section 193 of the Code ofCriminal Procedure, 1973, hereinafter referred to as “the Code”,to take cognizance of an offence and summon other persons whosecomplicity in the commission of the trial could prima facie begathered from the materials available on record.

3. According to the decision in Kishun Singh case [(1993) 2 SCC16 : 1993 SCC (Cri) 470], the Sessions Court has such powerunder Section 193 of the Code. On the other hand, in Ranjit Singhcase [(1998) 7 SCC 149 : 1998 SCC (Cri) 1554], it was held thatfrom the stage of committal till the Sessions Court reached thestage indicated in Section 230 of the Code, that Court could dealonly with the accused referred to in Section 209 of the Code andthere is no intermediary stage till then enabling the Sessions Courtto add any other person to the array of the accused.

4. The three-Judge Bench [Dharam Pal v. State of Haryana,(2004) 13 SCC 9 : (2006) 1 SCC (Cri) 273] took note of the factthat the effect of such conclusion is that the accused named incolumn 2 of the charge-sheet and not put up for trial could not betried by exercise of power by the Sessions Judge under Section193 read with Section 228 of the Code. In other words, evenwhen the Sessions Court applied its mind at the time of framing ofcharge and came to the conclusion from the materials availableon record that, in fact, an offence is made out against even thosewho are shown in column 2, it has no power to proceed againstthem and has to wait till the stage under Section 319 of the Codeis reached to include such persons as the accused in the trial iffrom the evidence adduced, their complicity was also established.The further effect as noted by the three-Judge Bench was that inless serious offences triable by the Magistrate, he would have thepower to proceed against those mentioned in column 2, in case hedisagreed with the police report, but in regard to serious offencestriable by the Court of Session, the Court would have to wait tillthe stage of Section 319 of the Code was reached.

5. The three-Judge Bench disagreed with the views expressedin Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri) 1554],but since the contrary view expressed in Ranjit Singhcase [(1998) 7 SCC 149 : 1998 SCC (Cri) 1554] had been takenby three-Judge Bench, the three-Judge Bench hearing this matter,by its order dated 1-12-2004 [Dharam Pal v. State of Haryana,(2004) 13 SCC 9 : (2006) 1 SCC (Cri) 273] , directed the matterto be placed before the Chief Justice for placing the same beforea larger Bench.”

11. The questions which were formulated for answer by theConstitution Bench in the case of Dharam Pal (supra) were:-

“7.1. Does the Committing Magistrate have any other role to playafter committing the case to the Court of Session on finding fromthe police report that the case was triable by the Court of Session?

7.2. If the Magistrate disagrees with the police report and isconvinced that case had also been made out for trial against thepersons who had been placed in column 2 of the report, does hehave the jurisdiction to issue summons against them also in orderto include their names, along with Nafe Singh, to stand trial inconnection with the case made out in the police report?

7.3. Having decided to issue summons against the appellants, wasthe Magistrate required to follow the procedure of complaintcase and to take evidence before committing them to the Court ofSession to stand trial or whether he was justified in issuing summonsagainst them without following such procedure?

7.4. Can the Sessions Judge issue summons under Section 193Cr PC as court of original jurisdiction?

7.5. Upon the case being committed to the Court of Session, couldthe Sessions Judge issue summons separately under Section 193of the Code or would he have to wait till the stage under Section319 of the Code was reached in order to take recourse thereto?

7.6. Was Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri)B1554], which set aside the decision in Kishun Singh case [(1993)2 SCC 16 : 1993 SCC (Cri) 470] , rightly decided or not?”

12. As regards scope of jurisdiction of the Magistrate in situationof this nature, it was held by the Constitution Bench in the case ofDharam Pal (supra):-

“35. In our view, the Magistrate has role to play while committingthe case to the Court of Session upon taking cognizance on thepolice report submitted before him under Section 173(2) CrPC.In the event the Magistrate disagrees with the police report, hehas two choices. He may act on the basis of protest petition thatDmay be filed, or he may, while disagreeing with the police report,issue process and summon the accused. Thereafter, if on beingsatisfied that case had been made out to proceed against thepersons named in column 2 of the report, proceed to try the saidpersons or if he was satisfied that case had been made outwhich was triable by the Court of Session, he may commit theEcase to the Court of Session to proceed further in the matter.

36. This brings us to the third question as to the procedure to befollowed by the Magistrate if he was satisfied that prima faciecase had been made out to go to trial despite the final reportsubmitted by the police. In such an event, if the Magistrate decidedFto proceed against the persons accused, he would have to proceedon the basis of the police report itself and either inquire into thematter or commit it to the Court of Session if the same was foundto be triable by the Sessions Court.”

13. Another Constitution Bench in the case of Hardeep SinghGvs. State of Punjab and Others [(2014) 3 SCC 92] followed DharamPal (supra). It was opined by the Constitution Bench in the case ofHardeep Singh (supra):-

“111. Even the Constitution Bench in Dharam Pal (CB) [(2014)3 SCC 306 : AIR 2013 SC 3018] has held that the Sessions CourtHcan also exercise its original jurisdiction and summon person as

an accused in case his name appears in Column 2 of the charge-sheet, once the case had been committed to it. It means that aperson whose name does not appear even in the FIR or inthe charge-sheet or whose name appears in the FIR andnot in the main part of the charge-sheet but in Column 2and has not been summoned as an accused in exercise ofthe powers under Section 193 CrPC can still be summonedby the court, provided the court is satisfied that theconditions provided in the said statutory provisions standfulfilled.”

(emphasis added)

14. Earlier, Coordinate Bench in the case of Raj Kishore Prasadvs. State of Bihar and Another [(1996) 4 SCC 495] expressed theview that power under Section 209 of the Code to summon new offenderwas not vested with Magistrate. In this decision, the correctness ofthe view taken in the cases of Kishun Singh & Others vs. State ofBihar [(1993) 2 SCC 16] and Nisar and Another vs. State of U.P.[(1995) 2 SCC 23] was doubted. The latter decision followed KishunSingh (supra). The Constitution Bench in the case of Dharam Pal (supra)affirmed the view taken by this Court in the case of Kishun Singh(supra) and overruled Raj Kishore Prasad (supra). In fact, again aCoordinate Bench in the case of Balveer Singh and Another vs. Stateof Rajasthanand Another [(2016) 6 SCC 680] has followed bothDharam Pal (supra) and Kishun Singh (supra). In the latter authority(i.e., Kishun Singh), it was, inter-alia, held:-

“13. The question then is whether de hors Section 319 of theCode, can similar power be traced to any other provision in theCode or can such power be implied from the scheme of the Code?We have already pointed out earlier the two alternative modes inwhich the Criminal Law can be set in motion; by the filing ofinformation with the police under Section 154 of the Code or uponreceipt of complaint or information by Magistrate. The formerwould lead to investigation by the police and may culminate in apolice report under Section 173 of the Code on the basis whereofcognizance may be taken by the Magistrate under Section190(1)(b) of the Code. In the latter case, the Magistrate mayeither order investigation by the police under Section 156(3) ofthe Code or himself hold an inquiry under Section 202 before

taking cognizance of the offence under Section 190(1)(a) or (c),as the case may be, read with Section 204 of the Code. Once theMagistrate takes cognizance of the offence he may proceed totry the offender (except where the case is transferred underSection 191) or commit him for trial under Section 209 of theCode if the offence is triable exclusively by Court of Session.As pointed out earlier cognizance is taken of the offence and notthe offender. This Court in Raghubans Dubey v. State ofBihar [(1967) 2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri LJ 1081]stated that once cognizance of an offence is taken it becomes theCourt’s duty ‘to find out who the offenders really are’ and if theCourt finds ‘that apart from the persons sent up by the policesome other persons are involved, it is its duty to proceed againstthose persons’ by summoning them because ‘the summoning ofthe additional accused is part of the proceeding initiated by itstaking cognizance of an offence’. Even after the present Codecame into force, the legal position has not undergone change;on the contrary the ratio of Dubey case [(1967) 2 SCR 423 : AIR1967 SC 1167 : 1967 Cri LJ 1081] was affirmed in HareramSatpathy v. Tikaram Agarwala [(1978) 4 SCC 58 : 1978 SCC(Cri) 496 : (1979) 1 SCR 349 : AIR 1978 SC 1568]. Thus farthere is no difficulty.”

15. There is difference so far as the position of law on whichthe opinions of the two Constitution Benches were delivered in relationto the facts of the present case. In the cases of Dharam Pal (supra)andHardeep Singh (supra), summons were issued against the persons whosenames had figured in column (2) of the chargesheet. Both theseFauthorities also dealt with exercise of jurisdiction of the Court of Sessionunder Section 193 of the Code. This provision reads:-

“193. Cognizance of offences by Courts of Session.

Except as otherwise expressly provided by this Code or by anyother law for the time being in force, no Court of Session shalltake cognizance of any offence as Court of original jurisdictionunless the case has been committed to it by Magistrate underthis Code.”

16. It would appear from the Code that the jurisdiction to takecognizance has been vested in the Magistrate (under Section 190 thereof)Has also Court of Session under Section 193, which we have quoted above.

This question has been examined in the case of Dharam Pal (supra)and on this point it has been held:-

“39. This takes us to the next question as to whether under Section209, the Magistrate was required to take cognizance of the offencebefore committing the case to the Court of Session. It is wellsettled that cognizance of an offence can only be taken once.In the event, Magistrate takes cognizance of the offenceand then commits the case to the Court of Session, thequestion of taking fresh cognizance of the offence and,thereafter, proceed to issue summons, is not in accordancewith law. If cognizance is to be taken of the offence, it couldbe taken either by the Magistrate or by the Court of Session.The language of Section 193 of the Code very clearly indicatesthat once the case is committed to the Court of Session by thelearned Magistrate, the Court of Session assumes originaljurisdiction and all that goes with the assumption of such jurisdiction.The provisions of Section 209 will, therefore, have to be understoodas the learned Magistrate playing passive role in committing thecase to the Court of Session on finding from the police report thatthe case was triable by the Court of Session. Nor can there beany question of part cognizance being taken by the Magistrateand part cognizance being taken by the learned Sessions Judge.”

(emphasis added)

The scope of jurisdiction of the Magistrate in taking cognizanceof an offence was earlier examined by three-judge Bench of this courtin the case of Raghubans Dubey vs. State of Bihar [AIR 1967 SC1167]. This authority was relied upon by the Coordinate Bench in thecase of Kishun Singh (supra). Dealing with broadly similar provisionsof the old Code, of 1898, it was observed by this Court:-

“8. ……….In our opinion, once cognizance has been taken bythe Magistrate, he takes cognizance of an offence and not theoffenders; once he takes cognizance of an offence it is his duty tofind out who the offenders really are and once he comes to theconclusion that apart from the persons sent up by the police someother persons are involved, it is his duty to proceed against thosepersons. The summoning of the additional accused is part of theproceeding initiated by his taking cognizance of an offence. Aspointed out by this Court in Pravin Chandra Mody v. State of

ABCD

AAndhra Pradesh [(1965) 1 SCR 269] the term “complaint” wouldinclude allegations made against persons unknown. If Magistratetakes cognizance under Section 190(1)(a) on the basis of acomplaint of facts he would take cognizance and proceedingwould be instituted even though persons who had committed theoffence were not known at that time. The same position prevails,Bin our view, under Section 190(1)(b).”

17. In the case of Kishun Singh (supra), the scope of jurisdictionof the Court of Session under Section 193 of the Code was explained,relying on an authority dealing with similar provision under the 1898Code (P.C. Gulati vs. Lajya Ram and Others [AIR 1966 SC 595]).CThe phrase used to explain the implication of taking cognizance by aCourt of Session in the judgment of Kishun Singh (supra) was“cognizance in the limited sense.” In paragraph 8 of the report (in KishunSingh’s case), it has been held observed:-

“8.Section 193 of the old Code placed an embargo on the CourtDof Session from taking cognizance of any offence as court of originaljurisdiction unless the accused was committed to it by Magistrate orthere was express provision in the Code or any other law to the contrary.In the context of the said provision this Court in P.C. Gulati v.L.R.Kapur[(1966) 1 SCR 560, 568 : AIR 1966 SC 595 : 1966 Cri LJ 465]observed as under:E

“When case is committed to the Court of Session, the Court ofSession has first to determine whether the commitment of thecase is proper. If it be of opinion that the commitment is bad on apoint of law, it has to refer the case to the High Court which iscompetent to quash the proceeding under Section 215 of the Code.FIt is only when the Sessions Court considers the commitment tobe good in law that it proceeds with the trial of the case. It is inthis context that the Sessions Court has to take cognizance of theoffence as court of original jurisdiction and it is such cognizancewhich is referred to in Section 193 of the Code.””

18. Jurisdiction of the Magistrate to take cognizance of an offencetriable by Court of Session is not in controversy before us. The courseopen to Magistrate on submission of police report has been discussedin the case of Dharam Pal (supra). In paragraph 39 of the report inDharam Pal’s case, such power or jurisdiction of the Magistrate hasHbeen spelt out. We have quoted this passage earlier in this judgment.

19. The other difference so far as this case is concerned in relationto the factual basis on which the decision of the Constitution Bench inDharam Pal (supra)as also the judgment in the case of RaghubansDubey (supra)were delivered is that in both these cases, the names ofthe persons arraigned as accused had figured in column (2) of the chargesheet. This column, as it appears from the judgment in the case ofRaghubans Dubey (supra), records the name of person under theheading “not sent up”. In that case, the person concerned was named inthe F.I.R. But that factor, by itself, in our opinion ought not to be consideredas reason for the Court in not summoning an accused not named in theF.I.R. and whose name also does not feature in chargesheet at all. Thesejudgments were delivered in cases where the names of the personssought to be arraigned as accused appeared in column (2) of the policereport. In our opinion the legal proposition laid down while dealing withthis point was not confined to the power to summon those persons only,whose names featured in column (2) of the chargesheet. In the case ofDharam Pal (supra),the second point formulated (para 7.2) related topersons named in column (2), but the issue before the Constitution Benchrelated to that category of persons only. This is the position of lawenunciated in the cases of Hardeep Singh (supra)and RaghubansDubey (supra). In the latter authority, the duty of the Court takingcognizance of an offence has been held “to find out who the offendersreally are and once he comes to the conclusion that apart from the persons

sent up by the police some other persons are involved, it is hisduty to proceed against those persons”. Such duty to proceed againstother persons cannot be held to be confined to only those whose namesfigure in column (2) of the chargesheet. As we have already observedthat in the aforesaid authorities, the question of summoning the personsnamed in column (2) of the chargesheet was involved, in our opinioninclusion in column (2) was not held to be the determinant factor forsummoning persons other than those named as accused in the policereport or chargesheet. The principle of law enunciated in Raghubans

Dubey (supra), Dharam Pal (supra) and Hardeep Singh (supra) doesnot constrict exercise of such power of the Court taking cognizance inrespect of this category of persons (i.e., whose names feature in column(2) of the chargesheet).

20. In the cases of Raghubans Dubey (supra), SWIL Ltd. (supra)and Dharam Pal (supra), the power or jurisdiction of the Court or

AMagistrate taking cognizance of an offence on the basis of policereport to summon an accused not named in the police report, beforecommitment has been analysed. The uniform view on this point,irrespective of the fact as to whether cognizance is taken by theMagistrate under Section 190 of the Code or jurisdiction exercised bythe Court of Session under Section 193 thereof is that the aforesaidBjudicial authorities would not have to wait till the case reaches the stagewhen jurisdiction under Section 319 of the Code is capable of beingexercised for summoning person as accused but not named as such inpolice report. We have already expressed our opinion that suchjurisdiction to issue summons can be exercised even in respect of aCperson whose name may not feature at all in the police report, whetheras accused or in column (2) thereof if the Magistrate is satisfied thatthere are materials on record which would reveal prima facie hisinvolvement in the offence. None of the authorities limit or restrict thepower or jurisdiction of the Magistrate or Court of Session in summoning

an accused upon taking cognizance, whose name may not feature in theDF.I.R. or police report.

21. In the present case, the name of the accused had transpiredfrom the statement made by the victim under Section 164 of the Code.In the case of Dharam Pal (supra), it has been laid down in clear termsthat in the event the Magistrate disagrees with the police report, he mayEact on the basis of protest petition that may be filed and commit thecase to the Court of Session. This power of the Magistrate is notexercisable only in respect of persons whose names appear in column(2) of the chargesheet, apart from those who are arraigned as accusedin the police report. In the subject-proceeding, the Magistrate acted onFthe basis of an independent application filed by the de facto complainant.If there are materials before the Magistrate showing complicity of personsother than those arraigned as accused or named in column 2 of thepolice report in commission of an offence, the Magistrate at that stagecould summon such persons as well upon taking cognizance of the

offence. As we have already discussed, this was the view of this CourtGin the case of Raghubans Dubey (supra). Though this judgment dealtwith the provisions of the 1898 Code, this authority was followed in thecase of Kishun Singh (supra). For summoning persons upon takingcognizance of an offence, the Magistrate has to examine the materialsavailable before him for coming to the conclusion that apart from thoseHsent up by the police some other persons are involved in the offence.

NAHAR SINGH v. THE STATE OF UTTAR PRADESH & ANR.[ANIRUDDHA BOSE, J. ]

These materials need not remain confined to the police report, chargesheet or the F.I.R. statement made under Section 164 of the Codecould also be considered for such purpose.

22. Turning to the facts of the present case, we do not find anyerror in the order of the Magistrate, which was affirmed by the HighCourt. We accordingly affirm the judgment under appeal.

23. The appeal is dismissed and the interim order passed in thismatter shall stand dissolved.

24. Pending application(s), if any, shall stand disposed of.

Devika Gujral

Appeal dismissed.