The Supreme Court has held that it is well within the powers of Magistrate to summon an additional accused who has not been named in the FIR or Chargesheet, if a prima-facie case is made out against him/her.
The single-judge Bench of Justice Aniruddha Bose while adjudicating upon an apppeal has re-affirmed the affirmative stance of High Court in question whether a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190 (1)(b) CrPC can issue summons to any person not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report?
The appellant’s case was that as he had not been named as accused in the chargesheet, he could only be summoned in exercise of jurisdiction under Section 319 CrPC.
The Court noted that in the judgment, the High Court has reiterated that it is well established principle of criminal jurisprudence that cognizance taken by the Magistrate is of an offence and not of an offender. 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 chargesheeted 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 chargesheeted, it was his duty to proceed against such persons as well by summoning them.
Dwelling on the judgement, the Court mentioned that the High Court had relied on M/S. Swil Ltd. Vs. State of Delhi & ANR, 2001 Latest Caselaw 390 SC. The further mentioned that the the power or jurisdiction of the Court or Magistrate taking cognizance of an offence on the basis of a police report to summon an accused not named in the police report, before commitment has been analysed in M/S. Swil Ltd. Vs. State of Delhi & ANR, 2001 Latest Caselaw 390 SC, Raghubans Dubey Vs. State of Bihar, 1967 Latest Caselaw 14 SC, Dharam Pal Vs. The State of Haryana, 2017 Latest Caselaw 566 SC.
It was held:
"The uniform view on this point, irrespective of the fact as to whether cognizance is taken by the Magistrate under Section 190 of the Code or jurisdiction exercised by the Court of Session under Section 193 thereof is that the aforesaid judicial authorities would not have to wait till the case reaches the stage when jurisdiction under Section 319 of the Code is capable of being exercised for summoning a person as accused but not named as such in police report. 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. None of the authorities limit or restrict the power or jurisdiction of the Magistrate or Court of Session in summoning an accused upon taking cognizance, whose name may not feature in the F.I.R. or police report."
The appeal was quashed in line with the above.
Read Judgement Here:
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