Section 190 (1)(b) CrPC- Magistrate Can Summon Person Not Named In Police Report Or FIR If Materials Reveal Prima Facie His Involvement : Supreme Court

The Supreme Court observed that the 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 can issue summons to any person not arraigned as an accused in the police report or in the FIR.

"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", the bench comprising Justices Vineet Saran and Aniruddha Bose held.

In this case, the appellant was summoned by the Chief Judicial Magistrate though he was not named in the chargesheet. This order was upheld by the Allahabad High Court.

In appeal, the accused contended that exercise of jurisdiction by the CJM, under Section 190 (1)(b) of the Code was impermissible in this case as he had not been named as accused in the chargesheet. It was contended that he could only be summoned in exercise of jurisdiction under Section 319 of the Code.  

Referring to judgments in Raghubans Dubey v. State of Bihar [(1967) 2 SCR 423 : AIR 1967 SC 1167, Dharam Pal and Others vs. State of Haryana  [(2014) 3 SCC 306] and Hardeep Singh vs. State of Punjab  [(2014) 3 SCC 92], the bench observed:

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 (supra), Dharam Pal (supra) and Hardeep Singh (supra) 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 cases of Raghubans Dubey (supra), SWIL Ltd. (supra) and Dharam Pal (supra), the power or jurisdiction of the Court or Magistrate taking cognizance of an offence on the basis of a police report to summon an accused not named in the police report, before commitment has been analysed. The uniform view on this point, irrespective of the fact as to whether cognizance is  taken by the Magistrate under Section 190 of the Code or jurisdiction exercised by the Court of Session under Section 193 thereof is that the aforesaid judicial authorities would not have to wait till the case reaches the stage when jurisdiction under Section 319 of the Code is capable of being exercised for summoning a person as accused but not named as such in police report. We have already expressed our opinion that such jurisdiction to issue summons can be exercised even in respect of a person whose name may not feature at all in the police report, whether as accused or in column (2) thereof if the Magistrate is satisfied that there are materials on record which would reveal prima facie his involvement in the offence. None of the authorities limit or restrict the power or jurisdiction of the Magistrate or Court of Session in summoning an accused upon taking cognizance, whose name may not feature in the F.I.R. or police report

Upholding the High Court judgment, the bench observed:

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.

Code of Criminal Procedure, 1973 ; Section 190 (1)(b) - Jurisdiction to issue summons can be exercised even in respect of a person whose name may not feature at all in the police report, whether as accused or in column (2) thereof if the Magistrate is satisfied that there are materials on record which would reveal prima facie his involvement in the offence. (Para 20)

Code of Criminal Procedure, 1973 ; Section 190 (1)(b) - 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. (Para 21)

Summary: Appeal against High Court judgment which upheld the order passed by Magistrate summoning the appellant who was not named in police report - Dismissed - The name of the accused/appellant had transpired from the statement made by the victim under Section 164 CrPC - No error in the order of the Magistrate. 

Case details

Nahar Singh vs State of Uttar Pradesh | 2022 LiveLaw (SC) 291 | CrA 443 OF 2022 | 16 March 2022

Coram: Justices Vineet Saran and Aniruddha Bose