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Nahar Singh vs. The State of Uttar Pradesh and Ors. - (Supreme Court) (16 Mar 2022)

Magistrate taking cognizance of an offence on the basis of a police report can issue summons to any person not arraigned as an accused in the police report or in the FIR



The question involved in present appeal is whether a 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 (CrPC) 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. In present case, the person concerned, being the Appellant, was not named in the First Information Report either.

In the present case, the name of the accused had transpired from the statement made by the victim under Section 164 of the CrPC. In the case of Dharam Pal v. State of Haryana, 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 CrPC could also be considered for such purpose.

There is no error in the order of the Magistrate, which was affirmed by the High Court. Appeal dismissed.


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