Magistrate can summon person not named in police report if materials prima facie show involvement:SC

The Supreme Court Wednesday said that jurisdiction to issue summons can be exercised even in respect of a person, whose name has not featured in the police report including as an accused if the magistrate is satisfied that materials on record prima facie reveal his involvement in the offence.

The apex court said if there are materials before the magistrate showing the complicity of a person, other than those who have been arraigned as accused or named in column two of the police report, the magistrate can summon such individual upon taking cognizance of the offence.

A bench of Justices Vineet Saran and Aniruddha Bose delivered its verdict on an appeal in which a question -- as to whether a magistrate taking cognizance of an offence based on a police report can issue summons to a person not arraigned as an accused and whose name also does not feature in column two -- came up for consideration.

"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," the bench said.

The bench, which referred to several previous judgements delivered by the apex court, said none of the authorities limits or restrict the power or jurisdiction of the magistrate or a court of sessions in summoning an accused, whose name may not feature in the FIR or the police report, upon taking cognizance.

The top court dismissed the appeal filed against the Allahabad High Court judgement of 2015.

It noted that the appellant before it was not named in the First Information Report (FIR) lodged in the case.

The chief judicial magistrate (CJM) of Bulandshahr in Uttar Pradesh had taken cognizance of the offences under various sections of the Indian Penal Code, including section 376 (punishment for rape), based on a police report which had named two individuals as accused in the case. The FIR was lodged on a complaint by the victim's mother who had stated that in May 2012, her daughter was enticed away by one of the named accused and his two or three associates. Later, the victim's statement was recorded under section 164 of the CrPC before a magistrate and she then disclosed the names of two other persons who had allegedly committed rape upon her.

The police filed a charge sheet against two accused and the magistrate had taken cognizance of the offences against them.

The victim's mother thereafter filed an application before the CJM court seeking an order requiring the appearance of the appellant, who was not named in the police report.

The CJM had dismissed the application after which she invoked the revisional jurisdiction of the sessions judge.

The revisional court set aside CJM's order and the matter was remanded back to the magisterial court.

The CJM heard the matter and the appellant was directed to be summoned for trial. The appellant then challenged the CJM's order but his petition was dismissed by the sessions judge.

Later, the high court delivered its judgement in May 2015 on the plea filed by the appellant and reiterated the well-established principle of criminal jurisprudence that cognizance taken by the magistrate is of an offence and not of an offender. The high court had held that it was the duty of the magistrate to find out concerning the complicity of any person apart from those who were charge-sheeted by sifting the corroborative evidence on record. In its verdict, the apex court noted that name of the accused had transpired from the statement given by the victim under section 164 of the CrPC.

"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," the bench said.

"These materials need not remain confined to the police report, charge sheet or the FIR. A statement made under section 164 of the Code could also be considered for such purpose," it said.

The apex court said it did not find any error in the order of the magistrate, which was affirmed by the high court.

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