Nasrat Ullah and Another vs The State of U.P. and Another

G.D. Dube, J.—A very short point arised in this revision preferred against the judgment and order of Third Addl. Sessions Judge, Agra allowing a revision filed by the Opposite Party No. 2 Mohd. Masood and directing the lower court to proceed with the case against the revisionists No. 1 and 2.

It appears that the charge sheet was submitted against four persons. The revisionists were shown in the column No. 2 as absconders. However, the Magistrate summoned all the accused Under Sections 147, 148, 323, 324 and 452, IPC. Revisionist got themselves bailed out by the order of the Magistrate. After hearing the accused charges were framed against them on 22-7-1980. All the prosecution witnesses were examined. The statement of the accused has also been recorded u/s 313, of the Code of Criminal Procedure After the aforesaid proceedings an application was moved on 14-7-1987 by the Public Prosecutor before the Magistrate u/s 319 of the Code for taking cognizance in the matter against the revisionists. This application was rejected by the Munsif Magistrate Firozabad and he opined that the charge sheet should be submitted separately against the revisionist. As against this order dated 4-8-1987 a revision was preferred by the State before the Session Judge. The learned Third Addl. Sessions Judge Agra had allowed the revision and held that the cognizance was rightly taken by the Magistrate. He therefore, directed the Magistrate to proceed with the case against the revisionists. Against this order this revision has been filed.

It has been urged before me that the order of the learned Sessions Judge is erroneous in as much as he has failed to consider that police had not submitted any charge sheet against the revisionists. The learned Magistrate could take cognizance against the revisionists only after a report u/s 173 of the Code had been submitted.

The learned Counsel for the opposite party has drawn my attention to Anupam Chakrawarti v. State of Assam 1984 CriLJ 733. He urged that in the instant case the Magistrate had rightly taken cognizance of the offence. He has argued that his contention is supported by the observation made in the case mentioned above.

In the above case of Anupam Chakrawarti it was held that the court while taking cognizance of an offence u/s 190 of the Code takes cognizance of the offence and not of the offenders. It was urged that the revisionist ought to have challenged the very framing of charge against them by way of revision alleging that the trial court had no jurisdiction to take cognizance of the matter. There was no sense in moving of the application by the Public Prosecutor after statement of accused u/s 313 of the Code, for taking cognizance against the revisionists u/s 319 of the Code.

In the case cited above the Single Judge of the Gauhati High Court had relied upon several observations of the Supreme Court. The learned Judge had quoted the following words in Joginder Singh and Another Vs. State of Punjab and Another, :

When a Magistrate takes cognizance u/s 190(1)(b) on a police report he takes cognizance of the offence and not merely of the particular person named in the charge-sheet and, therefore, the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the police u/s 161 and the other documents referred to in Section 173 even without examination of witnesses in Court.

In the Joginder Singh''s case, the case of Raghubans Dubey Vs. State of Bihar, was also relied upon. In this case the Supreme Court had observed as under:

In our opinion, once cognizance has been taken by the Magistrate he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Pravin Chandra Mody Vs. State of Andhra Pradesh, the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance u/s 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view u/s 190(1)(b).

In this case the learned Magistrate had taken the cognizance of the matter on police report. Once revisionists were shown as accused in column No. 2 where it was shown that they had not been arrested as yet, will not matter much and the Magistrate had jurisdiction to take cognizance of the offence against those who had not been arrested by the police, if it appeared from the evidence collected by the police by that time that they were prima facie guilty of the offence alleged to have been committed. There was no scope for moving the court u/s 319 of the Code at the end of the trial when only defence was to be led and arguments heard. The whole proceedings started on the petition of the public prosecutor was misconceived.

For the reasons mentioned above there is no force in this revision. The lower court had rightly set aside the order of the Magistrate. The revision is rejected.