TMI Blog2022 (3) TMI 1577X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 366 and 376 of the Indian Penal Code, 1860 (1860 Code) on 8th August, 2012 on the basis of police report. These are offences triable before a Court of Session. The police report had named two individuals as Accused-Yogesh and Rupa (the spelling of the name of the latter has been interchangeably used in different proceedings emanating from the First Information Report (F.I.R.) as Roopa and Rupa). The police report was made on the basis of an F.I.R. made by the mother of a lady victim (prosecutrix) on 9th May, 2012 in Police Station Chhatari, sub-district Shikarpur in the district of Bulandshahr, Uttar Pradesh. In this F.I.R., she stated that on 4th May, 2012, her minor daughter was enticed away by said Yogesh and his two or three associates. Later on, a radiologist on the basis of x-ray had found her to be a major, aged about 18 years. But the age-issue of the victim is not in controversy involved in this appeal. 3. The Investigating Officer recovered the prosecutrix on 10th May, 2012. Her statement Under Section 161 of the Code was recorded on 10th May itself. In her statement, in substance, she stated that Yogesh had committed rape upon her. The victim was, thereafter, produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is transferred from PS: Chhattari to PS: Dibai. The Investigating Officer of PS: Dibai didn't conduct impartial investigation. Despite having sufficient evidence against Accused Nahar Singh the charge sheet is not submitted and the name of Nahar Singh is deleted whereas Accused Rupa and Nahar Singh have committed an offence of rape with xxxx against her consent, as is evident from statement recorded Under Sections 161 and 164 Code of Criminal Procedure. There are sufficient grounds in the case diary to summon Accused Nahar Singh in the matter. The complainant and her daughter had also given statement before the I.O. of PS: Dibai for commission of offence of rap by Nahar Singh. As per the provisions of Section 190 Code of Criminal Procedure the court takes cognizance for the offence and not for the Accused. Therefore, it is prayed that this Hon'ble Court may pass an order against Accused Nahar Singh son of Megh Singh, resident of village Waan, PS: Chhattari to appear before the court. I shall be grateful to you. (quoted verbatim from the copy of the application as annexed to the paperbook. Name of the victim has been masked with xxxx) 5. In an order passed on 7th N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation to I.O. Ashok Kumar. The aforesaid Ashok Kumar Yadav, the in-charge Inspector of Police Station Dibai, during the investigation, again recorded the statements of victim xxxx, her mother Smt. Kamlesh, complainant Under Section 161 Code of Criminal Procedure and concluded that Nahar Singh son of Sh. Megh Singh resident of village Waan had no role in the abduction of xxxx nor he committed any offence like rape with her. He was implicated by complainant and the opposite party of Nahar Singh only due to enmity in the village. As a result, the I.O. filed charge sheet against the nominated Accused Yogesh and co-Accused Rupa. (quoted verbatim from the copy of the Revisional Court's judgment as annexed to the paperbook. Name of the victim has been masked with xxxx) 6. The Revisional Court set aside the order passed by the CJM on 7th November, 2012 by which the application of the de facto complainant was rejected. The matter was remanded to the Court of the CJM and the latter was directed to dispose of the said application in view of the observations made in the judgment of the Revisional Court. It was also observed in the order of the Revisional Court that the Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porting the allegations made against persons who have not been chargesheeted, it was his duty to proceed against such persons as well by summoning them. It was, inter-alia, held by the High Court in the judgment under appeal: The summoning of additional Accused person is an integral part of the proceedings where allegations of facts constituting an offence is made out for taking cognizance. At the time of taking cognizance, the Magistrate has only to see whether prima facie there are cogent reasons for issuing the process. The Magistrate is fully competent to take cognizance of an offence and there is no bar Under Section 190 Code of Criminal Procedure that once the process is issued against some of the Accused persons, the Magistrate can not issue process to some other person against whom charge sheet was not submitted and against whom there is some material on record. The investigation was transferred at the instance of the Accused persons who did not have any locus to direct the investigation to be transferred from one police station to another police station. Only when the investigation was transferred to another police station on further investigation the witnesses were re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t included as Accused in the charge-sheet. 10. There was divergence of views of different Benches of this Court on this point and ultimately the issue has been settled by a Constitution Bench in the case of Dharam Pal and Ors. v. State of Haryana and Anr. [(2014) 3 SCC 306]. Before dealing with the ratio of this decision, we shall narrate the journey of the legal dispute to that stage, which has been recorded in the judgment of Dharam Pal (supra) itself by the Constitution Bench: 1. This matter was initially directed to be heard by a Bench of three Judges in view of the conflict of opinion in the decisions of two two-Judge Benches, in Kishori Singh v. State of Bihar, [(2004) 13 SCC 11 : (2006) 1 SCC (Cri.) 275]; Rajinder Prasad v. Bashir [(2001) 8 SCC 522 : 2002 SCC (Cri.) 28] and SWIL Ltd. v. State of Delhi, [(2001) 6 SCC 670 : 2001 SCC (Cri.) 1205]. When the matter was taken up for consideration by the three-Judge Bench on 1-12-2004 [Dharam Pal v. State of Haryana, (2004) 13 SCC 9 : (2006) 1 SCC (Cri.) 273], it was brought to the notice of the Court that two other decisions had a direct bearing on the question sought to be determined. The first is Kishun Singh v. State of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to wait till the stage of Section 319 of the Code was reached. 5. The three-Judge Bench disagreed with the views expressed in Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri.) 1554], but since the contrary view expressed in Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri.) 1554] had been taken by a three-Judge Bench, the three-Judge Bench hearing this matter, by its order dated 1-12-2004 [Dharam Pal v. State of Haryana, [(2004) 13 SCC 9 : (2006) 1 SCC (Cri.) 273], directed the matter to be placed before the Chief Justice for placing the same before a larger Bench. 11. The questions which were formulated for answer by the Constitution Bench in the case of Dharam Pal (supra) were: 7.1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? 7.2. If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be triable by the Sessions Court. 13. Another Constitution Bench in the case of Hardeep Singh v. State of Punjab and Ors. [(2014) 3 SCC 92] followed Dharam Pal (supra). It was opined by the Constitution Bench in the case of Hardeep Singh (supra): 111. 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 Code of Criminal Procedure can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. (emphasis added) 14. Earlier, a Coordinate Bench in the case of Raj Kishore Prasad v. State of Bihar and Anr. [(1996) 4 SCC 495] expressed the view that power Under Section 209 of the Code to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons' by summoning them because 'the summoning of the additional Accused is part of the proceeding initiated by its taking cognizance of an offence'. Even after the present Code came into force, the legal position has not undergone a change; on the contrary the ratio of Dubey case [(1967) 2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri. LJ 1081] was affirmed in Hareram Satpathy v. Tikaram Agarwala [(1978) 4 SCC 58 : 1978 SCC (Cri.) 496 : (1979) 1 SCR 349 : AIR 1978 SC 1568]. Thus far there is no difficulty. 15. There is a difference so far as the position of law on which the opinions of the two Constitution Benches were delivered in relation to the facts of the present case. In the cases of Dharam Pal (supra) and Hardeep Singh (supra), summons were issued against the persons whose names had figured in column (2) of the chargesheet. Both these authorities also dealt with exercise of jurisdiction of the Court of Session Under Section 193 of the Code. This provision reads: 193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. As pointed out by this Court in Pravin Chandra Mody v. State of Andhra Pradesh [(1965) 1 SCR 269] the term complaint would include allegations made against persons unknown. If a Magistrate takes cognizance Under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, Under Section 190(1)(b). 17. In the case of Kishun Singh (supra), the scope of jurisdiction of the Court of Session Under Section 193 of the Code was explained, relying on an authority dealing with similar provision under the 1898 Code (P.C. Gulati v. Lajya Ram and Ors. [AIR 1966 SC 595]). The phrase used to explain the implication of taking cognizance by a Court of Session in the judgment of Kishun Singh (supra) was cognizance in the limited sense. In paragraph 8 of the report (in Kishun Singh's case), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raigned as Accused appeared in column (2) of the police report. In our opinion 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 (supra), 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. As we have 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) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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. As we have already discussed, this was the view of this Court in the case of Raghubans Dubey (supra). Though this judgment dealt with the provisions of the 1898 Code, this authority was followed in the case of Kishun Singh (supra). 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. 22. 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. 23. The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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