- In Nahar Singh vs. State of UP and anr. the Hon’ble Apex Court has held that the Magistrate, while taking cognizance of an offence under section 190(1)(b) of CrPC upon a Police Report, can issue summons to persons not mentioned in the police report or the FIR, if there is prima facie evidence of his/her involvement in the commission of the offence.
- The instant case was an SLP which arose out of the order of the Allahabad HC wherein the Court upheld the legality of the summons issued to one Nahar Singh, who was not mentioned in the chargesheet or the FIR.
- In this case, the victim, in her statement under section 161 CrPC said that Yogesh and Rupa were the people that had raped her. But when she was produced before the Additional Chief Judicial Magistrate, where she said that Yogesh along with Rupa and Nahar Singh, who is the appellant in the present SLP, had raped her.
- Thus, in her initial statement recorded under section 161 CrPC, Nahar Singh’s name was not mentioned, but was subsequently mentioned by the victim in her 164 statements. The de facto complainant, who was the mother of the victim, requested the Court of CJM to summon Nahar Singh, but the same was rejected by the Court on the ground of there being a lack of sufficient evidence that would warrant summoning the appellant. Thereafter, a revision petition was filed before the Sessions Court, where the order of the CJM was set aside. The Court was ordered to dispose of the said application of the de facto complainant in light of the observations of the Revisional Court.
- Nahar SIngh appealed against the summons before the HC on the grounds that he was not mentioned in the chargesheet and the summons against him were a judicial overreach.
- The HC in its decision reiterated the well established principle that the cognizance taken by the Magistrate is of the offence and not the offender. It is the duty of the Magistrate to find out the complicity of the persons not named in the police report or the FIR by sifting the corroborative evidence on record. If the Magistrate comes to the conclusion that there was clinching evidence on record to show the involvement of persons other than the ones mentioned in the chargesheet, then he is duty bound to proceed against those persons as well by the issuance of summons.
- Aggrieved by the said order, the appellant approached the Apex Court.
- The Court relied upon the case of Raghubans Dubey vs. State of Bihar AIR 1967 SC wherein it was held that the cognizance is taken of the offence and not the offender and if there is prima facie evidence on record to show the involvement of persons whose names have not been mentioned in the chargesheet or the FIR, the Magistrate is duty-bound to summon those persons to meet the ends of justice.
- The Apex Court also observed that in the case of Raghubans Dubey (cited above) and Dharam Pal vs State of Haryana and ors. (2014) SCC that irrespective of the cognizance that is taken under 190 CrPC or 193 CrPC, the authorities exercising these jurisdictions need not wait for the case to reach a stage when the powers vested in section 319 could be exercised for summoning a person who is not mentioned in the chargesheet and there is material on record to show his involvement in the commission of the offence. The same can be done at the stage of taking cognizance, under section 190 in case of a Magistrate or section 193, in case of a Court of Sessions.
- Thus, the appeal was rejected and the order of the lower Court was sustained.
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