2022 (3) TMI 1577 - SC - Indian Laws

Issuance of summons by Magistrate to any person not arraigned as an Accused in the police report - Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190(1)(b) of The Code of Criminal Procedure, 1973 - HELD THAT - The legal proposition laid down while dealing with this point was not confined to the power to summon those persons only, whose names featured in column (2) of the chargesheet. In the case of Dharam Pal 2013 (7) TMI 1181 - SUPREME COURT , the second point formulated (para 7.2) related to persons named in column (2), but the issue before the Constitution Bench related to that category of persons only. This is the position of law enunciated in the cases of Hardeep Singh (supra) and Raghubans Dubey (supra). In the latter authority, the duty of the Court taking cognizance of an offence has been held 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 . Such duty to proceed against other persons cannot be held to be confined to only those whose names figure in column (2) of the chargesheet - It is already observed that in the aforesaid authorities, the question of summoning the persons named in column (2) of the chargesheet was involved, in our opinion inclusion in column (2) was not held to be the determinant factor for summoning persons other than those named as Accused in the police report or chargesheet. The principle of law enunciated in Raghubans Dubey 1967 (1) TMI 83 - SUPREME COURT , Dharam Pal 2013 (7) TMI 1181 - SUPREME COURT and Hardeep Singh 2014 (1) TMI 1819 - SUPREME COURT does not constrict exercise of such power of the Court taking cognizance in respect of this category of persons (i.e., whose names feature in column (2) of the chargesheet). In the present case, the name of the Accused had transpired from 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 terms that in the event the Magistrate disagrees with the police report, he may act on the basis of a protest petition that may be filed and commit the case to the Court of Session. This 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. In the subject-proceeding, the Magistrate acted on the basis of an independent application filed by the de facto complainant. If there are materials before the Magistrate showing complicity of persons other than those arraigned as Accused or named in column 2 of the police report in commission of an offence, the Magistrate at that stage could summon such persons as well upon taking cognizance of the offence - 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. There are no error in the order of the Magistrate, which was affirmed by the High Court - appeal dismissed.

Summary

Issues Involved:
1. Jurisdiction of Magistrate under Section 190(1)(b) of the Code of Criminal Procedure, 1973.
2. Summoning of persons not named in the police report or FIR.
3. Role of Magistrate upon taking cognizance of an offence.
4. Applicability of Section 319 of the Code.
5. Differentiation between cognizance of offence and cognizance of offender.

Detailed Analysis:

1. Jurisdiction of Magistrate under Section 190(1)(b):
The primary issue addressed was whether a Magistrate, upon taking cognizance of an offence based on a police report under Section 190(1)(b) of the Code of Criminal Procedure, 1973, can issue summons to individuals not named as accused in the police report or FIR. The Supreme Court affirmed that the Magistrate has the authority to take cognizance of an offence and not just the offenders. This means that if the Magistrate finds sufficient evidence against any person, even if they are not named in the police report or FIR, the Magistrate can summon them.

2. Summoning of Persons Not Named in the Police Report or FIR:
The Court examined whether the Magistrate can summon individuals whose names do not appear in the police report or FIR. It was held that the Magistrate has the power to summon such persons if there is prima facie evidence of their involvement in the offence. This is supported by the victim's statement under Section 164 of the Code, which named the appellant as one of the offenders. The Court emphasized that the duty of the Magistrate is to find out who the real offenders are and proceed against them, irrespective of their mention in the police report.

3. Role of Magistrate Upon Taking Cognizance of an Offence:
The Court discussed the Magistrate's role after taking cognizance of an offence. It was highlighted that the Magistrate's duty is to sift through the evidence and determine the involvement of any person in the offence. The Magistrate is not restricted to the names mentioned in the police report and can summon any person against whom there is substantial evidence. This principle was reiterated from the case of Dharam Pal and Ors. v. State of Haryana and Anr., which clarified the role of the Magistrate in such situations.

4. Applicability of Section 319 of the Code:
The appellant argued that he could only be summoned under Section 319 of the Code, which allows the court to summon any person not named as an accused if it appears from the evidence that they have committed an offence. However, the Court clarified that Section 319 is applicable during the trial or inquiry stage, whereas the Magistrate's power under Section 190(1)(b) is exercisable at the stage of taking cognizance. The Court held that the Magistrate does not need to wait for the trial to summon additional accused and can do so based on the materials available at the cognizance stage.

5. Differentiation Between Cognizance of Offence and Cognizance of Offender:
The Court reiterated the principle that cognizance is taken of the offence and not the offender. This means that once the Magistrate takes cognizance of an offence, it is their duty to identify all the offenders involved, even if they are not named in the police report or FIR. The Court relied on previous judgments, including Raghubans Dubey v. State of Bihar and Kishun Singh v. State of Bihar, to support this view.

Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's judgment that the Magistrate was correct in summoning the appellant based on the victim's statement and other evidence. The Court emphasized that the Magistrate has the authority to summon any person involved in the offence, irrespective of their mention in the police report or FIR, at the stage of taking cognizance under Section 190(1)(b) of the Code. The appeal was dismissed, and the interim order was dissolved.