[Section 190 CrPC] Magistrate can issue summons against person not named in FIR and chargesheet: Supreme Court

In the case of Nahar Singh v. State of Uttar Pradesh, the Supreme Court recently held that a magistrate has power under Section 190 of the Code of Criminal Procedure, 1973 (CrPC) to issue summons against persons who have not been mentioned as accused in the chargesheet or arraigned in the First Information Report (FIR).

Section 190 CrPC empowers magistrates to take cognizance of criminal cases. Taking cognizance implies the application of judicial mind to the facts and circumstances of a particular case. A magistrate can take cognizance of a case on the receipt of a complaint, or a report by the police, or information received from a person other than the police officer, or upon his own knowledge.

The brief facts of the case are that the name of the appellant Nahar Singh was neither mentioned in the FIR filed by the complainant (mother of the prosecutrix) nor was he arraigned as an accused in the chargesheet filed under Section 173 CrPC. His name had transpired from the statement made by the prosecutrix under Section 164 CrPC. Based on this statement of the prosecutrix, the Chief Judicial Magistrate (CJM) had passed an order on February 5, 2015 directing Nahar Singh to be summoned for trial on February 21, 2015. This particular order was challenged by Nahar Singh through a criminal revision petition which came to be dismissed.

As a result, the appellant approached the Allahabad High Court by filing a criminal miscellaneous writ petition. The High Court dismissed the petition and 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. In case the Magistrate came to the conclusion that there was clinching evidence supporting the allegations made against persons who have not been chargesheeted, it was his duty to proceed against such persons as well by summoning them.”

Aggrieved, the appellant preferred a Special Leave Petition (SLP) against the said judgment of the High Court delivered on May 14, 2015.

The question before the Supreme Court was whether a magistrate has the power to take cognizance of an offence on the basis of a police report, with respect to Section 190(1)(b) CrPC, and subsequently issue summons to a person who is not mentioned as an accused in the FIR or police report?

While deciding the question of law and the appeal, the Supreme Court Bench of Justices Vineet Saran and Aniruddha Bose and analysed and relied on essential case laws, including Dharam Pal and others vs State of Haryana and Another. In this case, summons was issued by the magistrate against accused persons whose names were mentioned in column (2) of the chargesheet but not named in the police report or the FIR. The Court was of the opinion that the magistrate has the power to take cognizance and issue summons even if the name of the person is not mentioned in the FIR. In that judgment, it was held,

“In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance of the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the 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.”

This judgment was then followed and relied on in the case of Hardeep Singh vs State of Punjab and Others, wherein it was held,

“111.Even the Constitution Bench in Dharam Pal (CB) [(2014) 3 SCC 306: AIR 2013 SC 3018] has held that the Sessions Court can also exercise its original jurisdiction and summon a 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 a person whose name does not appear even in the FIR or in the charge-sheet or whose name appears in the FIR and not in the main part of the charge-sheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 CrPC can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled.”

In the present case, the Court further noted that the case of Dharam Pal had affirmed the view of the Supreme Court in an earlier judgment of Kishun Singh & Others v. State of Bihar, which dealt with the same issue. The Court had in that case opined that it is the duty of the magistrate to investigate the matter while taking cognizance of an offence, and go to the root of the offence by identifying the offender. Once he has done so, it is his further duty to take action against such persons irrespective of the person being mentioned in any police report. On this point, the Court in Dharam Pal had observed:

"...In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really 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 his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."

However, in the cases mentioned above, the accused person was either named in the chargesheet, or the FIR. In the present case, the same were absent. On this point, the Supreme Court observed that the principles reiterated in the cases above are not confined to the circumstances of those cases, but are also applicable in the cases where a person is neither named in the FIR nor the chargesheet. They bring out the duty of the magistrate to ‘find the offenders and proceed against such persons’, as stated in Kishun Singh (supra) and Raghubans Dubey v. State of Bihar. Hence, this principle of law laid down cannot be said to be restricted to the mentioning of the person in the chargesheet, police report or the FIR, the Court held.

As a result, the Supreme Court upheld the judgment of the High Court, stating:

“….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 person is 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.”