The Allahabad High Court has held that a Magistrate may take cognizance of an offence under Section 190(1)(b) of the Code of Criminal Procedure and summon the accused even where the police have filed a final report concluding that no case is made out, and that in doing so he is not required to follow the procedure prescribed under Sections 200 and 202 of the Code.

It held that at that stage the Magistrate has only to satisfy himself that a prima facie case exists.

Relying on the decisions of the Supreme Court in Rakesh and Another v. State of Uttar Pradesh and Another, Vishnu Kumar Tiwari v. State of UP and Another, Sonu Gupta v. Deepak Gupta and Others and State of Gujarat v. Afroz Mohammed Hasanfatta, Justice Sandeep Jain held,

“upon submission of a police report before the Magistrate, one of the courses open to the Magistrate is to take cognizance of the offence under Section 190(1)(b) of the Code and issue process, even where the police report concludes that no case is made out against the accused. While taking cognizance under Section 190(1)(b) of the Code, the Magistrate is not required to follow the procedure prescribed under Sections 200 and 202 of the Code.”

Complainant-petitioner Jeetu Soni lodged an F.I.R. on 18.03.2015 at Police Station Bidhuna, District Auraiya, under Section 307 I.P.C. against Satendra @ Chunmun and Narain. It was alleged that as he returned home from the jewellery shop with his father and brothers, the two accused came on a red Pulsar motorcycle and fired at his brother Anil Soni, out of previous enmity.

Anil Soni was medically examined the same day and a firearm injury was found on him, and the statements of the injured and the complainant under Section 161 Cr.P.C. named the two accused. The Investigating Officer nonetheless filed a final report, against which the complainant filed a protest petition.

The Judicial Magistrate, Auraiya, accepted the protest petition on 10.01.2019, took cognizance under Section 190(1)(b) Cr.P.C. and summoned the accused. In revision, the Sessions Judge, Auraiya, set that order aside on 15.07.2019, principally because the Magistrate had not recorded a specific finding that the case diary material made out an offence under Section 307 I.P.C., and remanded the matter for fresh consideration.

The complainant approached the High Court under Article 227 of the Constitution. Counsel for the accused did not appear and no counter affidavit was filed.

The Court observed that,

“..at the stage of taking cognizance and issuing summons, the Magistrate is required to apply his judicial mind only for the purpose of determining whether a prima facie case is made out for proceeding against and summoning the accused persons. At this stage, the Magistrate is neither required to consider the defence version, materials, or submissions advanced on behalf of the accused nor to undertake a detailed evaluation of the merits of the materials or evidence available on record.”

The Court noted the injury report showing a firearm wound, the injured's account of recognising both accused by voice and in the available light, his statement that they had also tried to snatch his bag before fleeing, and the complainant's corroboration. It held that,

“there was sufficient material available in the case diary disclosing the commission of an offence punishable under Section 307 I.P.C. At the stage of summoning, the defence version of the accused is not required to be examined or adjudicated upon.”

Finding the summoning order free of illegality or perversity, the Court held that,

“the learned revisional court has erred in interfering with the order passed by the learned Magistrate whereby the accused persons were summoned to face trial for the offence punishable under Section 307 I.P.C.”

Accordingly, the order of the Sessions Judge was set aside, the Magistrate's summoning order was affirmed, and the petition under Article 227 was allowed.

Case Title: Jeetu Soni v. State Of U.P. And 2 Others 2026 LiveLaw (AB) 683

Citation: 2026 LiveLaw (AB) 683

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