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2022 (3) TMI 1577 - SC - Indian LawsIssuance of summons by Magistrate to any person not arraigned as an Accused in the police report - 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 - HELD THAT:- The legal proposition laid down while dealing with this point was not confined to the power to summon those persons only, whose names featured in column (2) of the chargesheet. In the case of Dharam Pal [2013 (7) TMI 1181 - SUPREME COURT], the second point formulated (para 7.2) related to persons named in column (2), but the issue before the Constitution Bench related to that category of persons only. This is the position of law enunciated in the cases of Hardeep Singh (supra) and Raghubans Dubey (supra). In the latter authority, the duty of the Court taking cognizance of an offence has been held "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". Such duty to proceed against other persons cannot be held to be confined to only those whose names figure in column (2) of the chargesheet - It is already observed that in the aforesaid authorities, the question of summoning the persons named in column (2) of the chargesheet was involved, in our opinion 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 [1967 (1) TMI 83 - SUPREME COURT], Dharam Pal [2013 (7) TMI 1181 - SUPREME COURT] and Hardeep Singh [2014 (1) TMI 1819 - SUPREME COURT] 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 present case, the name of the Accused had transpired from the statement made by the victim Under Section 164 of the Code. In the case of Dharam Pal (supra), 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 Code could also be considered for such purpose. There are no error in the order of the Magistrate, which was affirmed by the High Court - appeal dismissed.
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