JUDGMENT
Navin Chandra Sharma, J.
1. This revision filed by Udai Singh and four others arise out of following circumstances.
2. After completing investigation on a First Information Report lodged by Avtar Singh, the officer-in-charge of Police Station, Sadul Shahar forwarded to the Addl. Chief Judicial Magistrate, Ganganagar a police report under Section 173 of the Code of Criminal Procedure stating there in the commission of offences under Sections 342 and 323, IPC on August 7, 1983 by Tala Singh, Dhanna Singh, Shamsher Singh and Sehab Singh, Petitioners Nos. 2 to 5 only and also forwarded alongwith the report the statements recorded under Section 161 of persons whom the prosecution proposed to examine as its witnesses and documents on which the prosecution proposed to rely upon this police report, the Addl. Chief Judicial Magistrate Ganganagar took cognizance on 26-6-1984 of the offences under Sections 342 and 323, IPC and took surety bonds and personal bonds from petitioners No. 2 to 5 for their appearance in his court for trial for the said offences. Avtar Singh informant filed a protest petition on 16 7-1984 before the said Magistrate contending that the police statements of the witnesses under Section 161, Cr. P.C. should the commission of offence under Sections 147, 148 and 364 read with Section 149, IPC and cognizance should be taken for these offences and that on the basis of the allegations, made by him in the First Information Report lodged at the police station and the statements of persons recorded by the police under Section 161, Cr. P.C. process should also be issued by the Magistrate against Udai Singh petitioner No. 1 to face trial of the offences before him By his order dated September 20, 1980 the Chief Judicial Magistrate, Ganganagar took the file of the case to his court. The Chief Judicial Magistrate by his order dated January 7, 1985 rejected both the contentions put forward by Avtar Singh in this protest petition. According to the Chief Judicial Magistrate the police statements of prosecution witnesses and other documents did not disclose commission of offence under Section 364. IPC. With regard to the second contention the Chief Judicial Magistrate feeling him self bound by the decision of this Court in Mahendra Kumar v. State of Rajasthan 1984 RLW 172 and following it held that under Section 319(1) of the Code, he had competence and power to add Udai Singh as accused in the case and to summon him to stand trial only if the evidence recorded during the trial disclosed Udai Singh’s involvement in the commission of the offence an:1 then the second contention put forward by Avtar Singh in his protest petition was premature.
3. The Sessions Judge, Ganganagar, on filing of revision by Avtar Singh against the order of the Chief Judicial Magistrate, Ganganagar in his revisional order dated June 6, 1986 held that the Chief Judicial Magistrate decided the contentions put forward by Avtar Singh keeping in view only the provisions contained in Section 319, Cr. P.C. and ignored his powers to take cognizance conferred upon him by Section 190(1) of the Code and did not take into consideration the police statements of witnesses recorded under Section 161, Cr. P.C. which contained the name of Udai Singh petitioner No. 1 as was in the commission of the offence. The Sessions Judge, Ganganagar, therefore, remanded the matter to the Chief Judicial Magistrate, Ganganagar with the directions that he should decide the protest petition of the informant Avtar Singh keeping in view provisions contained in Section 190(1)(b) of the Code.
4. A short question, therefore, for determination in the revision filed by Udai Singh and four others is as to which of the views is correct in law whether that taken by the Chief Judicial Magistrate, Ganganagar in his order dated January 7, 1985 or that of the Sessions Judge, Ganganagar taken by him in his revisional order dated June 6, 1986.
5. While the Sessions Judge, Ganganagar has relied upon a Single Bench decision of this Court in Chautha Mal v. State of Rajasthan 1982 RLW 265 the Chief Judicial Magistrate, Ganganagar felt himself bound by the decision of this Court in Mahendra Kumar v. State of Rajasthan 1984 RLW 172 and in Chauthmal’s case, after investigation the police had submitted a charge-sheet against 12 persons excluding one Shyam Bihari was named in the First Information Report lodged by Rambharose. On December 23, 1980 the Judicial Magistrate Sahgod took cognizance of the offence on the police report under Section 190(1)(b) Cr. PC and supplied copies of the police report and other documents to 12 accused persons. However, by his subsequent order dated Jan. 30, 1981 the Judicial Magistrate proceeded to take cognizance against Shayam Bihari as well on the basis of the police report taking the view that the statements recorded under Section 161, Cr. P.C. and other documents accompanying the said report warranted the taking of such cognizance. The Magistrate ordered the issue of warrant for causing Shyam Bihari to be brought before him on February 13, 1981 Shyam Bihari filed an application under Section 482 Cr. P.C. before this Court challenging the validity of the order dated January 30, 1981 where by the Judicial Magistrate took cognizance of the offence against Shyam Bihari inspite of the report of the police that there was no sufficient it evidence of justify the forwarding of Shyam Bihari to (he Magistrate Several contentions were raised on behalf of the accused before the learned Single Judge Amongst the contentions raised, there contentions are relevant for our present purpose. They were that the Magistrate had taken cognizance against Shyam Bihari upon his complaint dated January 16, 1981 received by him from one Banshilal and the Magistrate issued the warrant against the Shyam Bihari without examining the complaint of Banshi Lal and his witness required by Section 200, Cr. P.C. Which was illegal and deserved to be quashed. The second contention was that in the report submitted by the police to the Judicial Magistrate under Section 173 of the Code, the police did not include the name of Shayam Bihari as an accused because there was no sufficient evidence or reasonable ground of suspicion to justify (he forwarding of Shyam Bihari to the Magistrate. The Judicial Magistrate, therefore, could not lake cognizance of any offence lawfully against Shyam Bihari on the basis of the police report. The third contention was that after the dispensation of committal inquiry under the new Code of Criminal Procedure of 1973, there was no committal inquiry pending before the Magistrate he could not lawfully invoke the aid of Section 319 of the Code to proceed against Shyam Bihari and issue a warrant against him. The learned Single Judge rejected all the three contentions. According to him, the application filed by Banshilal on January 16, 1981 was not a complaint as defined in Section 2(d) of the Code assuming that the application of Banshi Lal was a complaint, the Judicial Magistrate has not taken cognizance of the offence upon the complaint because he had already taken cognizance upon the police report on Dec. 23, 1980. It was held that once a Magistrate takes cognizance upon a police report, he takes cognizance of the offence and not the offender. In such circumstances, it was his duty to issue process not only against the accused persons mentioned as such in the charge-sheet, but also against others whose involvement in. the commission of the crime may be suspected by him on the basis of the material appearing in police report. The Magistrate was not debarred from issuing process against persons other than those mentioned in the police charge-sheet merely because the police had expressed the opinion in the report that there was no sufficient evidence to justify the submission of charge-sheet against Shyam Bihari. On the third contention, the learned Single Judge held that apart from Section 319 of the Code, Section 204 was available to the Judicial Magistrate to issue process against Shyam Bihari because the Magistrate had already taken cognizance of the offence on December 23, 1980 and thereafter he found sufficient ground on the basis of the police report and the document accompanying it for proceeding against Shyam Bihari in addition to 12 persons against whom the charge sheet bad been submitted by the police. The Judicial Magistrate was clearly within has jurisdiction under Section 204 of the Code to issue the warrant for causing Shyam Bihari to be brought before him for proceedings preparatory to his commitment to the Court of Sessions for trial of the offence. His Lordship K.S. Sidhu, J. referred to the decision of the Calcutta High Court in Saifer v. State of West Bengal AIR 1962 Cal. 123 the Full Bench decision of the Judicial Commissioners AIR 1924 Sindu 71 and that of Punjab High Court in Fatta v. State AIR 1964 Pub. 35 which were approved by their Lordships of the Supreme Court in Raghubans Dube v. State of Bihar in support of his view. As against this, the Chief Judicial Magistrate, Ganganagar had relied upon a decision of learned Single Judge of this Court in Mahendra Kumar v. State of Rajasthan (supra) which in its turn was heard upon bench decision of this Court reported in Sheoram Singh v. State of Rajasthan 1985 RLW 550 in which was also followed by another learned Single Judge of this Court in Bagh Singh v. State of Rajasthan 1985 RLW 300.
6. I may refer to the bench decision of this Court in Sheoram Singh v. State of Rajasthan 1982 RLW 550 which has been made the basis by the two learned Single Judges of this Court in Mahendra Kumar v. State of Rajasthan (supra); Bagh Singh v. State of Rajasthan (supra) The FIR in She. ram Singh’s case was lodged on Jan. 10, 1980 against Sheoram Singh and certain other persons. The police after investigation filed a challan against 21 persons but did not include there in Sheoram Singh as in the opinion of the police no case was made out against him The Magistrate committed 21 persons challaned by the police to the Court of Sessions for trial which was subsequently transferred to the Court of Additional Sessions Judge. The Additional Public Prosecutor moved an application under Section 319 Cr. P.C. to make Sheoram Singh accused in the case. The Additional Sessions Judge, Deeg by his order dated 13th January, 1981, after taking into the consideration the documents filed under Section 173 Cr. P.C. along with the challan took cognizance against Sheoram Singh also and passed an order for summoning Sheoram Singh by a non-bailable warrant. Sheoram Singh had filed an application under Section 482 Cr. P.C. before this Court. In the case before the Bench, the Sessions Judge had not recorded the evidence and Sheoram Singh and others have been summoned by him to face the trial before the Court of Sessions solely on the basis of the police record after they had not been committed by the committing Magistrate and at a stage when the case came for consideration in Sessions trial. In Sheoram Singh’s case what came for consideration and interpretation were the provisions contained in Section 319 of the Code of Criminal Procedure and in that connection. Their Lordships referred to the preamble of the Indian Evidence Act, the definitions of “Evidence”, “Proved”, “Disproved” and “not proved” contained in Section 3 and came to the conclusion that the term “Evidence” as used in Section 319 of the Code means the statements of witnesses recorded before the Courts during an enquiry or trial and does not include, the statements recorded by the police under Section 161 of the Code or the statements recorded at the instance of the police by the Magistrate under Section 164 Cr. P.C. and the statements recorded by the Magistrate under Section 202(2) of the Code and the papers submitted by the police in the form of any other document. I may make it very clear that their Lordships were laying down law of the point whether in proceeding against a person who was not an accused in the course of Sessions trial for the offence which he appeared to have committed the Sessions Judge could only proceed against such person after evidence of some witnesses was recorded by it and not merely on the basis of statements of witnesses recorded by the police under Section 161 of Code and other pipers submitted by the police together with its report under Section 173, Cr. P.C. This authority cannot be read as an authority with respect to the power of the Judicial Magistrate taking cognizance of offence and finding that there was sufficient ground for proceeding to issue process for procuring the attendance of an accused under Section 204 of the Code. There Lordship in Sheoram Singh’s case then in para 24 of the reported judgment at page 539 of 1982 RLR stated that they had got no hesitation in holding a proposition of law that two stages of Section 190 Cr. P.C. and Section 312, Cr. P.C. are patently distinct, different, distinguishable and they have got their separate occupied fields which no where over lap each other. It was thus made clear by their Lordships themselves that the stage of taking cognizance under Section 110 Cr. P.C. at the stage of refusal or acceptance of the police report under Section 173 Cr. P.C. and summoning an accused under Section 309 Cr. P.C. are distinct stages. In Sheoram Singh’s case the case was for trial before the Sessions Court and was not before the Judicial Magistrate for taking cognizance of the offence or issuing process against offender. The decision in Sheoram Singh’s case, therefore, cannot be made basis for holding that the Judicial Magistrate has no jurisdiction to issue process against Udai Singh if he was satisfied that there was sufficient ground for proceeding against him. The observation quoted by learned Single Judge of this Court in the case of Bagh Singh v. State of Rajasthan (supra) at the foot of para 7 of the reported judgment from Sheoram-Singh’s case should not be read divorced from the context in which the observations were made by their Lordships in Sheoram Singh’s case The implications of the observations made by their Lordships in Sheoram Singhs’s case in para 25 of the reported judgment are nothing more than this that after commitment of case to the Court of Sessions, the committing Magistrate becomes functus officio and thereafter it is the Sessions Judge who tries Sessions case after commitment as hang over of the committing Magistrate. The stage then is for invoking Section 319 Cr. P.C. and not Section 190 of the Code. The decision in Sheoram Singh’s case is not an authority for the proposition that the Magistrate before the charges are framed by him cannot issue process to an offender against him, if he found sufficient ground for proceeding even on the basis of statements of witnesses recorded by the police under Section 161 Cr. P.C. and other documents enclosed to the police report under Section 173 Cr. P.C. without recording the evidence of witnesses by him One of the learned judges who was party to Sheo Ram Singh’s case in yet another decision in Hukma Ram v. State of Rajasthan 1982 RLW 300 had followed the bench decision in Sheoram Singh’s case, but it is quite clear that in Hukma Ram’s case also, the Assistant Public Prosecutor had moved the Sessions Judge for proceeding against Hukma Ram. Uma and Ramu Ram at a stage when the case was for sessions trial before the Sessions Judge. Both Sheoram Singh’s case and Hukma Ram’s case are not cases where the Magistrate by taking cognizance had issued process against the person who was not challaned by the police. Before the Division Bench in Sheoram Singh’s case, reliance was placed on the decision in Lumba Ram v. State 1956 RLW 349 where in if was held that it was possible for a Magistrate to take cognizance of an offence on a police report even though the police wants him to accept its negative report if that report contains facts that constituted offence and that it was not necessary for the Magistrate to record evidence before accepting the police report. He could have applied his mind to the reports and if he found that any offence could be constituted on the basis of the faces mentioned therein, he could take cognizance of the offence. This decision was not overruled in Sheoram Singh’s case but on the other hand was held to be correct. It was distinguishable on the ground that when the case had come to the Court of Sessions, powers under Section 319 of the Code could only be invoked The decisions in Ajayab Singh v. State of Rajasthan 1976 RLW 9 and Harji Ram and Ors. v. State of Rajasthan 1979 Cr. LR (Raj.) 240 which were overruled by Sheoram Singh’s case also related to the case where (he matter was before the Sessions Court after commitment by the Magistrate and not before the Magistrate.
7. The correct decision, in my humble view is that which was given by his Lordship K.S Sidhu, J. in Chauthamal v. State of Rajasthan 1982 RLW 265. It was not brought to the notice of the learned Single Judge in the case of Bagh Singh v. State of Rajasthan (supra). The view of his Lordship K.S. Sidhu, J. in Chauthmal’s case (supra) finds it basis in the decision of their Lordships of the Supreme Court in Raghubans Dube v. State of Bihar .
8. Facts in Raghubans Dube’s case were that Raghubans Dube was one of the 15 persons mentioned as assailants in the First Information Report dated July 29, 1960, lodged by one Rajaram Shah. The police investigated the case and accepted the plea of alibi set up before it by Raghubans Dube and did not include his name as an accused in the final report under Section 173, Cr. P.C. His name was, however, mentioned in column No. 2 of the charge-sheet under the heading “not sent up”. Upon this the Sub-Division Magistrate transferred (he case to Magistrate for enquiry with an order that Raghubans Dube who had not been sent up for trial is discharged. On transfer of the case, the Magistrate took up the hearing of the case on May 2, 1961. In the meantime, a petition had been filed on April 11, 1961 praying that Raghubans Dube not be summoned by the Magistrate. On May 2, 1961 Jagannath Rao, PW 1 was examined and in his examination-in-chief, impleaded the appellant Raghubans Dube as one of the persons who were present in the mob which was alleged to have killed Rupa Singh. On the same day Mahesh Rao, PW 2 also impleaded Raghubans Dube in his examination-in chief. Counsel for the First Informant Raja Ram Shah requested the Magistrate to summon Raghubans Dube also for trial as had been prayed in his application dated April 11, 1961 The Magistrate after hearing the matter, added Raghubans Dube also in the enquiry as accused. Raghubans Dube challenged the order before the Sessions Judge but Sessions Judge rejected his contention and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the case. Raghubans Dube filed a revision before the High Court which was dismissed. The appellant Raghubans Dube came to the Supreme Court by special leave. Two contentions were raised on his behalf before the Supreme Court. The first contention was that the S.D.M. before transferring the case to the Judicial Magistrate had already ordered on April 5, 1961 about the discharge of Raghubans Dube. The second argument was that the proper procedure to be observed on the facts of the case was not under Section 207A of the old Cr. PC but under the subsequent sections in Chapter XVIII of the Cr. PC. Their Lordships of the Supreme Court rejected both the contentions of Raghubans Dube With regard to the first contention, it was held that there could not be any question to discharge when Raghubans Dube was not sent up on the chargt-sheet submitted by the police For the second contention it was observed that once cognizance has been taken by the Magistrate, he had taken cognizance of an offence, not of the offenders. Once the Magistrate takes cognizance of an offence, it is his duty to find out who the offenders really were 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 a part of proceeding initiating by his taking cognizance of an offence. Their Lordships referred with approval the decision of the Calcutta High Court in Saifer v. State of West Bengal following the Full Bench decision of the Judicial Commissioners Sind in Mehrab v. Emperor AIR 1924 Sind 71 that of the Punjab High Court in Fatta v. State AIR 1964 Pub 351 and that of the Allahabad High Court in Ali Ullah v. State 1963 (2) Cr. LJ 66 and they all were relied upon and followed by the learned Single Judge (his Lordship K S. Sidhu) in Chauthmal’s case(supra).
9. It may be stated that “taking cognizance” means nothing more than taking judicial notice of the offence. It does not involve any formal notice or needed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. It is also very well settled that ‘taking cognizance” means cognizance of offence and not offenders. Once the Magistrate 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 part 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 proceedings initiated by his taking cognizance of an offence.
10. It is interested to note that even the decision of learned Single Judge of this Court in Hukama Rani’s case was dissented to by the High Court in 1954 Cr. LJ 733.
11. Before parting with this order, reference may also he made to the decision of the Lordships of the Supreme Court in Bhagwant Singh v. Commissioner of Police and Anr. AIR 1985 SC 125 where in it was laid down that, when on a consideration of the police report, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. This was held to be necessary on ground of natural justice.
12. I am of the opinion that the view taken by the Sessions Judge, Ganganagar by his impugned order dated June 6, 1986 is correct and not that of the Chief Judicial Magistrate, Ganganagar.
13. This revision has no merit in it and it is hereby dismissed.