The Allahabad High Court recently held that a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the CrPC even if the police report is to the effect that no case is made out against the accused.

The Court noted that 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 Court held that 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.

The bench of Justice Manju Rani Chauhan noted “…the position is very clear and well settled 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 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.”

The Court made this observation while dealing with a plea filed by an accused under Section 482 CrPC who was booked under POCSO Act.

Advocate Dr. C.P. Upadhyay appeared for the accused whereas AGA Amit Singh Chauhan appeared for the State.

The counsel for the accused-applicant submitted that while entertaining the final report as submitted against the accused persons, wherein the applicant was exonerated, there are two remedies provided to the informant, either to move protest petition for further investigating or move an application u/s 319 Cr.P.C. for summoning of the applicant after the examination of the prosecution witnesses. The counsel for the accsued-applicant said that the Magistrate entertained the informant’s application u/s 190(1)(b) Cr.P.C. and summoned the applicant without considering the aforesaid fact.

The Court observed that the name of the accused-applicant came into light from the statement of the victim recorded under Section 164 Cr.P.C. The Court added that while summoning the applicant, on the basis of the statement under Section 164 Cr.P.C., 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 complicity of the applicant in the aforesaid case although his name did not find place in the charge-sheet.

The Court asserted that the truth of the prosecution case has to be established beyond doubt at the trial. The Court added that “…this Court is of opinion that this is not a case, where the prosecution ought to be scuttled at the threshold in the exercise of powers under Section 482 of the Code.”

Accordingly the Court dismissed the plea.

Cause Title- Asif Ahmad Siddiqui v. State of U.P. and Another

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Allahabad High CourtJustice Manju Rani Chauhan

Ashish Shaji