Top News Headlines 17th Mar 2022: Section 190(1)(b): Magistrate Can Summon Persons Not Named In The FIR If He Is Prima Facie Involved In The Offence

Section 190(1)(b): Magistrate Can Summon Persons Not Named In The FIR If He Is Prima Facie Involved In The Offence: SC

• In Nahar Singh vs. State of UP and anr. the Hon’ble Apex Court has held that the Magistrate, while taking cognizance of an offence under section 190(1)(b) of CrPC upon a Police Report, can issue summons to persons not mentioned in the police report or the FIR, if there is prima facie evidence of his/her involvement in the commission of the offence. 
• The instant case was an SLP which arose out of the order of the Allahabad HC wherein the Court upheld the legality of the summons issued to one Nahar Singh, who was not mentioned in the chargesheet or the FIR.
• In this case, the victim, in her statement under section 161 CrPC said that Yogesh and Rupa were the people that had raped her. But when she was produced before the Additional Chief Judicial Magistrate, where she said that Yogesh along with Rupa and Nahar Singh, who is the appellant in the present SLP, had raped her. 
• Thus, in her initial statement recorded under section 161 CrPC, Nahar Singh’s name was not mentioned, but was subsequently mentioned by the victim in her 164 statements. The de facto complainant, who was the mother of the victim, requested the Court of CJM to summon Nahar Singh, but the same was rejected by the Court on the ground of there being a lack of sufficient evidence that would warrant summoning the appellant. Thereafter, a revision petition was filed before the Sessions Court, where the order of the CJM was set aside. The Court was ordered to dispose of the said application of the de facto complainant in light of the observations of the Revisional Court. 
• Nahar SIngh appealed against the summons before the HC on the grounds that he was not mentioned in the chargesheet and the summons against him were a judicial overreach. 
• The  HC in its decision reiterated the well established principle that the cognizance taken by the Magistrate is of the offence and not the offender. It is the duty of the Magistrate to find out the complicity of the persons not named in the police report or the FIR by sifting the corroborative evidence on record. If the Magistrate comes to the conclusion that there was clinching evidence on record to show the involvement of persons other than the ones mentioned in the chargesheet, then he is duty bound to proceed against those persons as well by the issuance of summons. 
• Aggrieved by the said order, the appellant approached the Apex Court. 
• The Court relied upon the case of Raghubans Dubey vs. State of Bihar AIR 1967 SC wherein it was held that the cognizance is taken of the offence and not the offender and if there is prima facie evidence on record to show the involvement of persons whose names have not been mentioned in the chargesheet or the FIR, the Magistrate is duty-bound to summon those persons to meet the ends of justice.
• The Apex Court also observed that in the case of Raghubans Dubey (cited above) and Dharam Pal vs State of Haryana and ors. (2014) SCC that irrespective of the cognizance that is taken under 190 CrPC or 193 CrPC, the authorities exercising these jurisdictions need not wait for the case to reach a stage when the powers vested in section 319 could be exercised for summoning a person who is not mentioned in the chargesheet and there is material on record to show his involvement in the commission of the offence. The same can be done at the stage of taking cognizance, under section 190 in case of a Magistrate or section 193, in case of a Court of Sessions.
• Thus, the appeal was rejected and the order of the lower Court was sustained. 

Testimony Of A Child Witness; Competency Certificate Not Required If The Child Witness Is Able To Understand Questions And Give Rational Answers Allahabad HC

• In Amrita Anand @ Tribhuvan vs State of UP and anr. the Hon’ble Allahabad HC has observed that the competency certificate of a child witness is not required if the child witness gives rational answers to the questions put to him and his testimony remains unshaken and inspires confidence of the Court.

• It is important to note that section 118 of the Indian Evidence Act states that all persons are competent to testify if they are capable of understanding the questions put to them and giving rational answers to those questions. Nowhere has it been mentioned that a competence certificate is required in case the person giving the testimony is a child. 
• The present appeal was filed against the order of conviction passed by the POCSO Court against a 60 year old man for sexually assaulting a 4 year old girl child. He was sentenced to undergo 7 years rigorous imprisonment. 
• The primary contention of the appellant was that the lower court had not given any certificate regarding the competence of the child witness, who is also the victim. The appellant relied upon the case of P. Ramesh vs State represented by Inspector of Police (2019) SCC. 
• The Hon’ble HC was of the view that the Judge was at liberty to test the capacity of the child witness by questioning him/her to find out if the child is capable of understanding the circumstances that had occurred and to speak the truth before the Court. 
• The Court relied upon the decision of the Apex Court in the case of Dattu Ramrao Sakhare vs State of Maharashtra (1997)SCC wherein it was held that where the Court is satisfied that the child witness below the age of 12 is a competent witness, he/she can be examined without oath or affirmation.
• Thus, the appeal was rejected and the judgement of the lower Court was sustained.  

Tamil Nadu Government’s Order Providing For 50% Reservation In Medical Super Specialty Courses To In-Service Candidates Is Tenable: Supreme Court

• The Honourable Supreme Court in the case of Dr. N. Karthikeyan & Ors. V. State of Tamil Nadu & Ors. [Writ Petition (Civil) No. 53 Of 2022] has allowed the State of Tamil Nadu to continue the counselling for Medical Super speciality courses in Government Medical Colleges for the academic year 2021-22 while going ahead with the reservation provided by it through the impugned Government order.
• Supreme Court vide an interim order dated 27th November, 2020, had directed that the counselling for admission to Super Specialty Medical Courses for the academic year 2020-21 shall proceed without providing for reservations to in-service doctors.
• The writ petitioners and the appellants in the present case had contended that the Court should continue the aforesaid interim order of this Court even for the academic year 2021-22. This prayer was strongly opposed by the State as well as the in-service candidates.
• The Learned Counsel for the petitioners, while citing leading case laws, contended that the matters regarding coordination and determination of standards in institutions for higher education, research and scientific & technical institutions were clearly covered by Item 66 in List-I of the 7th Schedule to the Constitution of India. So, the Regulation issued by the Medical Council of India would prevail over state government order.
• Learned counsel for State of Tamil Nadu submitted that the present bench was bound by the decision of the Constitutional bench in the case of Tamil Nadu Medical Association v. Union of India, wherein it was particularly held that the State was empowered to provide for a separate source of reservation for in-service candidates seeking admission to postgraduate degree/diploma courses, in view of List III Entry 25 in 7th Schedule of the Constitution of India.
• It was submitted that if reservations are not done, there would be a danger of a large number of Super Specialty seats being reduced on account of non-availability of the requisite number of faculty. In-service reservation is provided with an object of getting services of such candidates till their superannuation.
• The Honourable Bench observed that while passing the interim order on 27th November 2020, the court took cognizance of the fact that government order was issued on 7th November i.e., after the admission process had begun. So, the objective was that rules should not be changed after the admission process had begun.
• For the academic year 2021-22, undoubtedly, the said order was notified before the commencement of the admission process of the said courses. 
• The Bench formed a prima facie view that the facts in the present case were much closer to the facts that were considered in Tamil Nadu Medical Officers Association v. Union of India & ors. 
• Therefore, taking into consideration the principles of judicial discipline and judicial propriety, The Bench was guided by the judgment of the Constitution Bench in the case of Tamil Nadu Medical Officers Association v. Union of India rather than other leading judgments quoted during the proceedings.
• In the light of the above and the arguments put forward by the Learned Counsel for the Respondents It was held that there was no purpose to be served by continuing interim protection which was granted for the academic year 2020-21 and the given petition was rejected. 50% reservation of seats for in-service candidates from the academic year 2021-22 was allowed.