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Synopsis

The Allahabad High Court in its judgment dated April 26, 2023 reiterated that the powers of a Magistrate while acting under Section 190(1)(b) are immense – he can apply mind to the facts, afresh, and can issue process even against a person who is not charge-sheeted and summon/issue process, if there is enough material on record.

Justice Manju Rani Chauhan, while dismissing an application filed under Section 482 CrPC, held, “… 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 Magistrate can take into account the statements of the witnesses examined by the police during the investigation and 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 bench, while referring to the observations in Nahar Singh v. State of UP, (2022) 5 SCC 295, further observed that summoning of persons who are not arrayed as an accused in the chargesheet or police report, cannot be a determining factor for issuing summons and does not restrict the power of court in taking cognizance against such persons.

On the second issue of whether the High Court while exercising powers under Section 482 CrPC, can quash chargesheet when the Magistrate has merely issued process against the applicant and trial is yet to commence – it was held that the power under Section 482 CrPC is to prevent abuse of process or to secure ends of justice. Where there appears a prima facie case against the applicant, and the trial is yet to begin, it is not appropriate for the High Court to intervene under Section 482 and assume powers ordinarily vested with the Trial Court. Reliance was placed on State of Haryana v. Bhajan Lal, 1992 AIR 604 and Neeharika Infrastructure v. State of Maharashtra, (2021) SCC OnLine 315 in this regard.

The application was moved against summoning order dated 30.01.2023 on the following grounds –

1. That it was passed without application of mind, solely relying on the statement of the victim under section 164 CrPC.
2. That there exists no prima facie case against the applicant.
3. That contradictions in the testimony were not taken into account (FIR and cognizance under S. 190(1)(b) CrPC).
4. That applicant was not named in the FIR.
5. That involvement of the applicant is not established in the CDR details as well.
6. That applicant was neither named in the FIR, nor charge-sheeted, but has been summoned as per powers u/s. 190(1)(b).

Case Title: Asif Ahmad Siddiqui v. State of U.P., APPLICATION U/s 482 no. – 5500 of 2023