Section 190 (1)(b) CrPC| Magistrate Can Summon Person Even On The Basis Of S. 164 CrPC Statement If His Prima Facie Involvement Is Found: Allahabad HC

The Bench of Justice Manju Rani Chauhan, however, clarified that before summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to a prima facie 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 20 report, charge sheet or the F.I.R. The statement made under Section 164 of the Code could also be considered for such purpose…,” the court observed.

In this regard, the Court referred to the Supreme Court’s ruling in the case of Nahar Singh vs State of Uttar Pradesh 2022 LiveLaw (SC) 291 wherein it was ruled that if there are materials before the Magistrate showing the complicity of persons other than those arraigned as accused or named in column 2 of the police report in the commission of an offence, the Magistrate at that stage, could summon such persons as well upon taking cognizance of the offence.

The Court observed thus while dismissing a section 482 CrPC plea moved by one Asif Ahmad Siddiqui challenging an order of the Additional District and Sessions Judge/Special Judge, POCSO Act, Allahabad issuing him summons to face charges under Sections 323, 363, 328, 376Gha(Ka), 377, 504, 506 IPC and Section 5/6 POCSO Act.

It was his primary contention that the summons was issued without application of judicial mind, solely relying upon the statement of the victim under Section 164 CrPC even though from the material collected by the Investigating Officer, no prima facie case was made out against the applicant and even his name did not appear in the FIR, or in victim’s Section 161 CrPC statement.

On the other hand, the AGA, appearing for the state and the counsel for the victim argued that the Magistrate had summoned the accused since a prima facie case for the alleged offence was made out against him.

It was also contended that in the statement of the victim u/s 164 CrPC as well as in her statement before the doctor, she had put specific allegations against the applicant regarding sexually assaulting her and hence, the summoning order was rightly passed.

Against the backdrop of these submissions, the Court, at the outset, observed that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused.

The Court further noted that the Magistrate can take into account the statements of the witnesses examined by the police during the investigation, take cognizance of the offence complained of, and order the issuance of process to the accused.

“Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused,” the Court said.

Against this backdrop, the Court found the summoning order to be justified as it noted that in the present case, the name of the accused applicant had come into light from the statement of the victim recorded under Section 164 CrPC.

The Court noted that while summoning the applicant, on the basis of the statement under Section 164 CrPC, the Magistrate acted on the basis of an independent application filed by the de facto complainant and found that there was sufficient material before him showing the complicity of the applicant in the aforesaid case although his name did not find a place in the charge-sheet and hence, no interference was required in the summoning order.

Consequently, refusing to quash the proceedings and the summoning order, the Court dismissed the petition.

Appearances

Counsel for Applicant: Dr. C.P. Upadhyay

Counsel for Opposite Party: AGA Amit Singh Chauhan, Pradeep Kumar Mishra, Harbansh Prasad Pandey

Case title - Asif Ahmad Siddiqui vs. State of U.P. and Another [APPLICATION U/S 482 No. - 5500 of 2023]

Case Citation: 2023 LiveLaw (AB) 137

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