IMPORTANT POINT
Cognizance of offence on the basis of police report – For summoning persons upon taking cognizance of an offence, Magistrate has to examine materials available before him for coming to the conclusion that apart from those sent up by police some other persons are involved in offence – These materials need not remain confined to police report, charge-sheet or F.I.R. – A statement made under Section 164 of Cr.P.C. could also be considered for such purpose.

JUDGMENT

Aniruddha Bose, J.

Leave granted.

2. The question which we shall be addressing in this appeal is whether a 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 (the Code) 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. In this case the person concerned, being the appellant, was not named in the First Information Report either. The High Court of Judicature at Allahabad has opined on this question in the affirmative in the judgment delivered on 14th May, 2015. This judgment is under appeal before us. The Chief Judicial Magistrate (CJM), Bulandshahr, Uttar Pradesh had taken cognizance of offences under Sections 363, 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, produced before the Additional Chief Judicial Magistrate, Bulandshahr and her statement under Section 164 of the Code was recorded on 14th May, 2012. In that statement, she had disclosed the names of the accused Rupa, Yogesh as also the appellant herein-Nahar Singh, as the persons who had committed rape upon her. Her statement, inter-alia, was recorded in the following terms:-

“It is an incident of 02.5.2012. It was 12 O’clock in the day. 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. I want to go with my father and mother.”

(quoted verbatim from the copy of the statement as annexed to the paperbook)

4. In her initial statement recorded under Section 161 of the Code, the name of Nahar Singh did not figure. The charge-sheet was submitted subsequently, in which Yogesh and Rupa were arraigned as accused persons. On 8th August, 2012, the CJM, Bulandshahr took cognizance of offence under Sections 363, 366 and 376 of the 1860 Code against accused Yogesh and Rupa. The de facto complainant, being mother of the victim thereafter had filed an application before the Court of the CJM in Criminal Case No. 102/2012 praying for an order requiring appearance of the appellant before the Court. In this application, it was inter-alia, stated:-

“Accused Yogesh and Rupa are in judicial custody of the District Jail. Accused Nahar Singh i