Nahar Singh v.

State of Uttar
Pradesh
Dated – 16th of March, 2022
Court – the Supreme Court of India
Bench - Justice Aniruddha Bose and Justice Vineet Saran

The Supreme Court of India while considering the power of a Magistrate taking
cognizance of an offence on the basis of a police report in terms of Section 190
(1)(b) of CrPC to issue summons to any person not arraigned as an accused in
the police report, the Supreme Court opined that, 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.

A Division Bench of Justice Aniruddha Bose and Justice Vineet Saran observed
that materials to be examined by the Magistrate need not remain confined to
the police report, charge sheet or FIR, but statement made u/s 164 of CrPC
could also be considered for such purpose.

Facts of the case

1. The Chief Judicial Magistrate (CJM), Bulandshahr, Uttar Pradesh had taken
cognizance of offences u/s 363, 366 and 376 of IPC on the basis of a police
report, which had named two individuals as accused-Yogesh and Rupa. The
police report was made on the basis of an FIR made by the mother of a lady
victim (prosecutrix), wherein she stated that in 2012 her daughter was enticed
away by said Yogesh and his two or three associates.
 2. The Investigating Officer recovered the prosecutrix and recorded her
statement u/s 161 of CrPC wherein she stated that Yogesh had committed
rape upon her. The victim was, thereafter, produced before the Additional
Chief Judicial Magistrate and her statement u/s 164 of CrPC was recorded
wherein she disclosed the names of the accused Rupa, Yogesh as also Nahar
Singh (appellant), as the persons who had committed rape upon her, stated
that “I was standing at the bus stand at that time. Two persons Rupa and
Yogesh were standing there. Both of them forcibly took me to Pahasu. Both of
them telephoned Nahar Singh there. He came there with a vehicle and all of
them made me sit in that four-wheeler vehicle and took me from there to
Khurja. After closing the vehicle all of them took turns of rape on me.
Thereafter, all of them consumed liquor and also forcibly made me drink liquor
by putting it in Pepsi. Then again all of them forcibly raped me and threatened
me if you may not live as wife of Yogesh, we will ruin your family. These people
made me unconscious and dressed me in bangles, Bichhia and also filled my
Maang and left me at Kamauna.”

3. The CJM found that there was no ground to summon the appellant for trial.
Against this order, the de facto complainant invoked the revisional jurisdiction
of the Sessions Judge, which set aside the order passed by the CJM and
remanded the matter to the Court of the CJM. It was also observed in the
order of the Revisional Court that the Magistrate should pass a lawful order to
summon the accused, Nahar Singh in the matter. the Chief Judicial Magistrate
(CJM) had passed an order on February 5, 2015 directing Nahar Singh to be
summoned for trial on February 21, 2015. This particular order was challenged
by Nahar Singh through a criminal revision petition which came to be
dismissed.

4. The appellant thereafter approached the Allahabad High Court urging that
exercise of jurisdiction by the CJM u/s 190 (1)(b) of CrPC was impermissible in
the subject case.

Appeal in Allahabad High court by Nahar Singh

 The appellant’s case was that as he had not been named as accused in the
charge-sheet, he could only be summoned in exercise of jurisdiction u/s 319
 of CrPC. The High Court held that it was the duty of the Magistrate to find out
with respect to the complicity of any person apart from those who were
charge-sheeted by sifting the corroborative evidence on record. In case the
Magistrate came to the conclusion that there was clinching evidence
supporting the allegations made against persons who have not been charge-
sheeted, it was his duty to proceed against such persons as well by
summoning them.

 The Allahabad High Court dismissed the criminal writ petition filed by the
Appellant (Nahar Singh).

 Aggrieved, the appellant preferred a Special Leave Petition (SLP) against the
said judgment of the High Court delivered on May 14, 2015.

Related Provisions

 Section 190 of The Code of Criminal Procedure, 1973 - Cognizance of

offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under sub- section
(2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his
own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to
take cognizance under sub- section (1) of such offences as are within his competence
to inquire into or try.

 Section 319 of The Code of Criminal Procedure, 1973 - Power to proceed

against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from
the evidence that any person not being the accused has committed any offence for
 which such person could be tried together with the accused, the Court may proceed
against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned,
as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons,
may be detained by such Court for the purpose of the inquiry into, or trial of, the
offence which he appears to have committed.

 Section 161 of The Code of Criminal Procedure 1973 - Examination of

witnesses by police.
(1) Any police officer making an investigation under this Chapter, or any police
officer not below such rank as the State Government may, by general or special
order, prescribe in this behalf, acting on the requisition of such officer, may examine
orally any person supposed to be acquainted with the facts and circumstances of the
case.
(2) Such person shall be bound to answer truly all questions relating to such case put
to him by such officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.

 Section 164 of The Code of Criminal Procedure, 1973 - Recording of

confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the
course of an investigation under this Chapter or under any other law for the time
being in force, or at any time afterwards before the commencement of the inquiry or
trial: Provided that no confession shall be recorded by a police officer on whom any
power of a Magistrate has been conferred under any law for the time being in force.

(6) The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried.

ISSUE
Whether a Judge who has taken notice of an infraction based on a police statement under
Section 190 (1)(b) of the CrPC, 1973 (the Code) can issue summonses to someone who is
not named as an offender in the police statement.

Supreme Court’s Observation

1. The Supreme Court Bench of Justices Vineet Saran and Aniruddha Bose
observed in the case of Dharam Pal and others vs State of Haryana and
Another that the summons was issued by the magistrate against accused
persons whose names were mentioned in column (2) of the chargesheet but
not named in the police report or the FIR. In that judgment, it was held,

2. “In our view, the Magistrate has a role to play while committing the case to
the Court of Session upon taking cognizance of the police report submitted
before him under Section 173(2) CrPC. In the event the Magistrate disagrees
with the police report, he has two choices. He may act on the basis of a
protest petition that may be filed, or he may, while disagreeing with the police
report, issue process and summon the accused. Thereafter, if on being
satisfied that a case had been made out to proceed against the persons
named in column 2 of the report, proceed to try the said persons or if he was
satisfied that a case had been made out which was triable by the Court of
Session, he may commit the case to the Court of Session to proceed further in
the matter.”

3. The Apex Court further referred the case of Hardeep Singh vs State of Punjab
and Others, wherein it was held, “Even the Constitution Bench in Dharam Pal
(CB) [(2014) 3 SCC 306: AIR 2013 SC 3018] has held that the Sessions Court can
also exercise its original jurisdiction and summon a person as an accused in
case his name appears in Column 2 of the charge-sheet, once the case had
been committed to it. It means that a person whose name does not appear
even in the FIR or in the charge-sheet or whose name appears in the FIR and
not in the main part of the charge-sheet but in Column 2 and has not been
summoned as an accused in exercise of the powers under Section 193 CrPC
can still be summoned by the court, provided the court is satisfied that the
conditions provided in the said statutory provisions stand fulfilled.”
 4. The Supreme Court while referring another case, the judgment of Kishun
Singh & Others v. State of Bihar, which dealt with the same issue. Apex court
observed that “in our opinion, once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the offenders; once he
takes cognizance of an offence it is his duty 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. The summoning of the additional accused is
part of the proceeding initiated by his taking cognizance of an offence."

5. After analysing these Supreme Court Judgements, the Apex Court observed in
this case - “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 person
is 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.”

Judgement

1. The Apex Court Bench comprising Vineet Saran and Aniruddha Bose, JJ. in the
case of Nahar Singh vs. State of Uttar Pradesh and Another [Criminal Appeal
No. 443 of 2022] has held that the Magistrate has power under Section 190 of
the CrPC to issue summons against persons who have not been charge-
sheeted or arraigned in the First Information Report (“F.I.R.”) as accused.

2. The supreme Court of India while Upholding the Judgement of Allahabad High
Court held that “Turning to the facts of the present case, we do not find any
error in the order of the Magistrate, which was affirmed by the High Court.
We accordingly affirm the judgment under appeal”.

3. The appeal is dismissed and the interim order passed in this matter shall stand
dissolved.