Section 190 Cr.P.C.: Magistrate have unfettered power to issue summons- Allahabad High Court

J&L LNN February 22, 2023

Section 190 Cr.P.C.: Magistrate have unfettered power to issue summons- Allahabad High Court

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June 3, 2023
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Section 190 Cr.P.C.: Magistrate have unfettered power to issue summons- Allahabad High Court

The Hon’ble Lucknow Bench of Allahabad High Court while placing reliance on judgment passed by Hon’ble Supreme Court in Nahar Singh Vs. State of U.P. recently observed that the learned Chief Judicial Magistrate has unfettered power to issue summon against any such person who has not been mentioned as an accused in the charge sheet or arraigned in the first information report and dismissed the Criminal Revision.

BRIEF FACTS OF THE CASE

A first information report under section 306 I.P.C. came to be lodged against six named accused persons including the present revisionist by the first informant stating therein that his sister was married to accused about 15 years ago It is also mentioned in the first information report that the sister of the first informant was being harassed continuously by all six named accused persons including the present revisionist. Due to harassment meeted out by the named accused persons including the present revisionist, the sister of the first informant is stated to have committed suicide on 29.11.2022 by hanging herself. Upon conclusion of investigation, a police report in the form of charge sheet came to be submitted against accused/husband of the deceased and Co-accused only and not against the revisionist.

However, upon the statements of first informant, Vijay, mother of the deceased, Smt. Kiran and another brother of deceased, Atul recorded under Section 161 Cr.P.C., wherein they have stated that the accused, Shiv Bhagwan and present revisionist also harassed the victim/deceased and she was also assaulted by Shiv Bhagwan and the present revisionist, learned C.J.M. Sitapur has took cognizance for the offence under Section 306 I.P.C. and summoned the present revisionist also including the other accused Pinku @ Parmanand and Shiv Bhagwan , vide impugned order dated 24.02.2023.

CONTENTION OF REVISIONIST

The counsel for revisionist pleaded that the learned trial Court has committed error in issuing process to the present revisionist against whom charge sheet was not submitted before learned trial Court, the impugned order is therefore, patently illegal. His further submission is that if the learned C.J.M. is found to be entitled to issue process at this stage under Section 190 Cr.P.C. against any person against whom no charge sheet has been filed, then in such eventuality, the provision contained under Section 319 Cr.P.C. would be rendered nugatory.

He has also submitted that as the learned Magistrate is not empowered to issue process to any person other than the person against whom a charge sheet has been laid by the police, therefore, such order taking cognizance of the matter and issuing process is hit by the provision contained in Section 461 Cr.P.C which declares such proceeding, an irregular proceeding and further placed reliance upon upon the judgments rendered by the Hon’ble Supreme Court in Prasad Shrikanht Purohit vs. State of Maharashtra (2015 (3) SCC (Cri) 138 ) and Bhagwant Singh vs. Commissioner of Police (1985 AIR (SC) 1285).

CONTENTION OF THE STATE

Learned A.G.A. has opposed the prayer and placed reliance upon the judgment passed in Nahar Singh Vs. State of U.P. ((2022) 5 SCC 295)

HON’BLE COURT OBSERVATIONS

Hon’ble Mr. Justice Ajai Kumar Srivastava-I while placing reliance on Para 17 of Nahar Singh judgment (supra) as quoted below :-

“17. As regards scope of jurisdiction of the Magistrate in a situation of this nature, it was held by the Constitution Bench in Dharam Pal [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] : (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”

has observed that that a Magistrate has power under Section 190 Cr.P.C. to issue summon against such person who has not been mentioned as an accused in the charge sheet or arraigned in the first information report.

Further, his lordship Quoted the para 77 of Prasad Shrikanht Purohit vs. State of Maharashtra (supra) as quoted below:-

” 14. Hon’ble Supreme Court in the case of Prasad Shrikanht Purohit (supra) in para no.77 has held as under :-

“The said statement of law reinforces the legal position that cognizance is always of the offence and not the offender and once the Magistrate applies his judicial mind with reference to the commission of an offence the cognizance is taken at that very moment.”

In view of the above, the Hon’ble court was of the opinion that that there is no illegality or irregularity in the impugned order dated 24.02.2023 warranting interference by this Court and dismissed the Criminal Revision as it lacks merit.

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