Allahabad High Court
Smt. Shalini Kashyap And Another vs State Of U.P. And 4 Others on 9 September, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on 30.8.2022 Delivered on 9.9.2022 Court No. - 82 Case :- APPLICATION U/S 482 No. - 23830 of 2021 Applicant :- Smt. Shalini Kashyap And Another Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Awadhesh Kumar Singh,Abhai Kumar Singh Counsel for Opposite Party :- G.A.,Sanjay Vikram Singh Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri. Awadhesh Kumar Singh, learned counsel for applicants, Shri. Rakesh Kumar Singh, learned counsel for informant and Shri.Chandan Agarwal, learned A.G.A. Perused the records.
2. By means of this application, applicants have prayed for setting-aside the impugned judgment and order dated 29.9.2021 passed by Additional Sessions Judge, Court No.3, Hathras in Criminal Revision No.106 of 2020, (C.N.R. No.UPHT010030162020) Smt. Shalu Vs. State of U.P. & Ors.
3. Complainant/opposite party No.2, Shalu lodged an F.I.R. No.0333 dated 9.11.2019 at Police Station-Hathras Junction, district-Hathras against her husband Rohit Kashyap (applicant no.2), her Jeth Rishi, her father-in-law Amar Nath, her sister-in-law (wife of dewar and applicant no.1) and Arvind Kumar (Relative) for allegedly committing offence under Sections 498-A, 504, 506, 120-B, 342, 377, 376 I.P.C. and ¾ D.P.Act
4. After investigation, a charge-sheet No.188/2020 dated 1.9.2020 was filed only against Rohit, Rishi and Amar Nath for offence under Sections 498-A, 504, 506 I.P.C. and 3 / 4 D.P.Act.
5. At the stage of cognizance, complainant filed an application before Judicial Magistrate, Hathras, alleging unfair investigation.
6. The complainant being aggrieved filed a Criminal Revision No.106 of 2020 that charge-sheet was filed on lesser offence, whereas no charge-sheet was filed for offence of grievous nature despite sufficient evidence being on record.
7. The learned Magistrate partly allowed the Revision Petition by impugned order dated 29.9.2021 interalia that:
"there is prima-facie evidence to summon Rohit under Section 377 I.P.C."
and "there is prima-facie evidence to summon accused Shalini under Sections 498-A, 406, 504, 506 I.P.C. and 3/4 D.P.Act."
and "there is no prima-facie evidence to summon Shalini and Rishi under Sections 376, 342 and 120-B I.P.C."
and "There is prima-facie evidence to summon Arvind under Sections 498-A, 406, 504, 506 I.P.C. and ¾ D.P.Act."
8. Learned counsel for applicants has submitted his argument in two folds.
9. Firstly, he submitted that the Magistrate cannot add or substract any offence other than the offence for which charge-sheet is filed.
10. Learned counsel for applicants submitted that in the present case, learned Magistrate took cognizance on offence other than the offence for which charge-sheet was filed and in this regard, he has placed reliance upon the judgment of Supreme Court in State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659. Relevant paragraph nos.14,15,16 and 17 thereof are extracted hereinafter:
"14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police.
15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of I.P.C. on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the chargesheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet.
16. In the alternative, if a case is based on a complaint lodged before the magistrate under Section 190 or 202 Cr.P.C., the magistrate has been conferred with full authority and jurisdiction to conduct an enquiry into the complaint and thereafter arrive at a conclusion whether cognizance is fit to be taken on the basis of the sections mentioned in the complaint or further sections were to be added or substracted. The Cr.P.C. has clearly engrafted the two channels delineating the powers of the magistrate to conduct an enquiry in a complaint case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conducts investigation under Chapter XII and there is absolutely no ambiguity in regard to these procedures.
17. In spite of this unambiguous course of action to be adopted in a case based on police report under Chapter XII and a magisterial complaint under Chapter XIV and XV, when it comes to application of the provisions of the Cr.P.C. in a given case, the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which is to deal with a case based on a complaint before the magistrate and the police powers based on a police report/FIR has been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of the Cr.P.C. The affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the chargesheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the chargesheet, would be determined only at the time framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 of the Cr. P.C. clearly shall have to be followed."
11. The second argument of counsel for applicants is that learned Revisional Court has summoned the accused persons against whom no charge-sheet was submitted and for that he has placed reliance upon Dharam Pal & Ors. Vs. State of Haryana & Anr, (2014) 3 SCC 306, relevant paragraph 27 thereof is mentioned hereinafter:
"27. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge."
12. Learned A.G.A. as well as learned counsel for informant have opposed the above submission and supported the impugned orders that learned Magistrate has not committed any error and on the basis of material available in Case Diary, he summoned the applicants as well as took cognizance of the offence for which the charge-sheet was not submitted. They further submitted that Magistrate cannot act as a Post Master and he can apply its mind on the basis of material available not only to summon the accused persons against whom charge-sheet was not filed but can also take cognizance of other than offence in event there was a material for commission of the said offence, therefore, Revisional Court has also not committed any error.
13. The first argument of learned counsel for applicants that addition or substraction of charge for any offence any section is not permissible at the stage of cognizance and it is permissible by the Trial Court only at the time of framing of charge under Sections 216, 218 or Section 228 Cr.P.C. as the case may be.
14. The above submissions have a support of the judgment passed by Supreme Court in State of Gujarat (supra), wherein the Supreme Court has specifically held that Magistrate in a case which is based on a police report cannot add or substract section at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge, therefore, I find merit in the first argument of counsel for the applicants, that learned Magistrate has committed error by adding sections at the time of taking cognizanace as well as by the Revisional Court.
15. So far as second argument of counsel for applicants is concerned that Magistrate cannot summon other accused persons at the time of taking cognizance even though the material exists has no force and it has been reiterated by the Supreme Court in a recent case of Nahar Singh Vs. State of U.P. & Anr, (2022) 5 SCC 295. Relevant paragraphs 15,16,17,18,19,20,21,22,23,24,25,26,27 and 28 thereof are reproduced below:
"15. 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 Dharam Pal Vs. State of Haryana, (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:-(SCC pp 310-11, paras 1-5) "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, Rajinder Prasad v. Bashir, (2001) 8 SCC 522 and SWIL Ltd. v. State of Delhi, (2001) 6 SCC 670. 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, 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 Bihar, (1993) 2 SCC 16 and the other is a decision of a three-Judge Bench in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149.
2. Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 disapproved the observations made in Kishun Singh v. State of Bihar, (1993) 2 SCC 16 which was to the effect that the Sessions Court has power under Section 193 of the Code of Criminal Procedure, 1973, hereinafter referred to as "the Code", to take cognizance of an offence and summon other persons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record.
3. According to the decision in Kishun Singh v. State of Bihar, (1993) 2 SCC 16, the Sessions Court has such power under Section 193 of the Code. On the other hand, in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149, it was held that from the stage of committal till the Sessions Court reached the stage indicated in Section 230 of the Code, that Court could deal only with the accused referred to in Section 209 of the Code and there is no intermediary stage till then enabling the Sessions Court to add any other person to the array of the accused.
4. The three-Judge Bench Dharam Pal v. State of Haryana, (2004) 13 SCC 9, took note of the fact that the effect of such a conclusion is that the accused named in column 2 of the charge-sheet and not put up for trial could not be tried by exercise of power by the Sessions Judge under Section 193 read with Section 228 of the Code. In other words, even when the Sessions Court applied its mind at the time of framing of charge and came to the conclusion from the materials available on record that, in fact, an offence is made out against even those who are shown in column 2, it has no power to proceed against them and has to wait till the stage under Section 319 of the Code is reached to include such persons as the accused in the trial if from the evidence adduced, their complicity was also established. The further effect as noted by the three-Judge Bench was that in less serious offences triable by the Magistrate, he would have the power to proceed against those mentioned in column 2, in case he disagreed with the police report, but in regard to serious offences triable by the Court of Session, the Court would have 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 v. State of Punjab, (1998) 7 SCC 149, but since the contrary view expressed in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149, 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 , directed the matter to be placed before the Chief Justice for placing the same before a larger Bench."
16. 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 with Nafe Singh, to stand trial in connection with the case made out in the police report?
7.3. Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
7.4. Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?
7.5. Upon the case being committed to the Court of Session, could the Sessions Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
7.6. Was Ranjit Singh v. State of Punjab, (1998) 7 SCC 149, which set aside the decision in Kishun Singh v. State of Bihar, (1993) 2 SCC 16, rightly decided or not?"
17. As regards scope of jurisdiction of the Magistrate in a situation of this nature, it was held by the Constitution Bench in the case of Dharam Pal (supra): (SCC p. 319, paras 35-36) "35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on 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.
36. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court."
18. Another Constitution Bench in the case of Hardeep Singh vs. State of Punjab (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 (supra) 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." (emphasis added)
19. Earlier, a Coordinate Bench in the case of Raj Kishore Prasad vs. State of Bihar (1996) 4 SCC 495 expressed the view that power under Section 209 of the Code to summon a new offender was not vested with a Magistrate. In this decision, the correctness of the view taken in the cases of Kishun Singh vs. State of Bihar (1993) 2 SCC 16] and Nisar and Another vs. State of U.P. [(1995) 2 SCC 23] was doubted. The latter decision followed Kishun Singh (supra). The Constitution Bench in the case of Dharam Pal (supra) affirmed the view taken by this Court in the case of Kishun Singh (supra) and overruled Raj Kishore Prasad (supra). In fact, again a Coordinate Bench in the case of Balveer Singh vs. State of Rajasthan (2016) 6 SCC 680 has followed both Dharam Pal (supra) and Kishun Singh (supra). In the latter authority (i.e., Kishun Singh supra), it was, inter-alia, held:-
"13. The question then is whether de hors Section 319 of the Code, can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code? We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the latter case, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191) or commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Session. As pointed out earlier cognizance is taken of the offence and not the offender.This Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 stated that once cognizance of an offence is taken it becomes the Court's duty ''to find out who the offenders really are' and if the Court finds ''that apart from the persons sent up by the police some other persons are involved, it is its duty to proceed against those 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 Raghubans Dubey (supra) was affirmed in Hareram Satpathy v. Tikaram Agarwala (1978) 4 SCC 58. Thus far there is no difficulty."
20. 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 any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
21. It would appear from the Code that the jurisdiction to take cognizance has been vested in the Magistrate (under Section 190 thereof) as also Court of Session under Section 193, which we have quoted above. This question has been examined in the case of Dharam Pal (supra) and on this point it has been held:- (SCC pp.319-20, para 39) "39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge." (emphasis added)
22. The scope of jurisdiction of the Magistrate in taking cognizance of an offence was earlier examined by a three-judge Bench of this court in the case of Raghubans Dubey vs. State of Bihar AIR 1965 SC 1167. This authority was relied upon by the Coordinate Bench in the case of Kishun Singh (supra). Dealing with broadly similar provisions of the old Code, of 1898, it was observed by this Court:- (AIR pp.1169-70, para9) "9. ..........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. 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)."
23. 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 vs. Lajya Ram and Others, 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."
24. In paragraph 8 of the report (in Kishun Singh's case (supra), it has been held observed:- (SCC pp.24-25) "8. Section 193 of the old Code placed an embargo on the Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it by a Magistrate or there was express provision in the Code or any other law to the contrary. In the context of the said provision this Court in P.C. Gulati v. Lajya Ram, 1966 Cri LJ 465, SCR p 568, AIR p.599, Cri.LJ p.469 observed as under: (AIR p.599 para 21) " 21. When a case is committed to the Court of Session, the Court of Session has first to determine whether the commitment of the case is proper. If it be of opinion that the commitment is bad on a point of law, it has to refer the case to the High Court which is competent to quash the proceeding under of the Code. It is only when the Sessions Court considers the commitment to be good in law that it proceeds with the trial of the case. It is in this context that the Sessions Court has to take cognizance of the offence as a court of original jurisdiction and it is such a cognizance which is referred to in Section 193 of the Code.""
25. Jurisdiction of the Magistrate to take cognizance of an offence triable by a Court of Session is not in controversy before us. The course open to a Magistrate on submission of a police report has been discussed in the case of Dharam Pal (supra). In paragraph 39 of the report in Dharam Pal's case, such power or jurisdiction of the Magistrate has been spelt out. We have quoted this passage earlier in this judgment.
26. The other difference so far as this case is concerned in relation to the factual basis on which the decision of the Constitution Bench in Dharam Pal (supra) as also the judgment in the case of Raghubans Dubey (supra) were delivered is that in both these cases, the names of the persons arraigned as accused had figured in column (2) of the charge sheet. This column, as it appears from the judgment in the case of Raghubans Dubey (supra), records the name of a person under the heading "not sent up". In that case, the person concerned was named in the F.I.R. But that factor, by itself, in our opinion ought not to be considered as a reason for the Court in not summoning an accused not named in the F.I.R. and whose name also does not feature in chargesheet at all. These judgments were delivered in cases where the names of the persons sought to be arraigned 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.
27. In 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.
28. 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) 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 (supra), Dharam Pal (supra) and Hardeep Singh (supra) 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]."
16. In view of the above, learned Magistrate has not committed any error in summoning other accused not being named in charge-sheet on the basis of material available with case diary. There is no dispute that material was available in regard to said accused persons for summoning.
17. The outcome of the above discussion is that cognizance for offence under Section 406 I.P.C. by learned Magistrate against all the accused persons is legally erroneous, therefore, cognizance order is set-aside qua to taking cognizance for the offence under Section 406 I.P.C. as well as order passed in the revision petition is interfered to the extent of observation that there is prima-facie evidence against Rohit Kashyap (applicant no.2) to summon him under Section 377 I.P.C., as at this stage of charge-sheet no offence could be added or deleted and further that there is prima-facie evidence to summon Arvind under Sections 498-A, 406, 504, 506 I.P.C. and 3/4 D. P. Act only to the extent to summon him under Section 406 I.P.C. also. However, the learned Magistrate is at liberty to consider the material available to take cognizance of other offence, if any, against any accused, at the time of framing of charge.
18. With the above mentioned direction, this application is allowed partly.
Order Date :-9.9.2022 SB