Mahmood Ali Khan, J.:— This petition has been filed under Section 482 of the Cr.P.C for setting aside the order of a Metropolitan Magistrate dated 9.1.2002 by which she had taken cognizance of the offence under Sections 323/394/397 read with Section 506 (II) IPC against the petitioner Jitender Singh @ Motu, Inder Pal Singh @ Billo and Harvinder Pal Singh @ Meena to stand trial in the case alongwith co-accused.
2. The facts giving rise to this petition, briefly stated, are that a case FIR No. 295/95 was registered at P.S Inderpuri on 19.11.1995 for offences under Sections 394 and 506, IPC. This case was registered on the complainant of one Sanjay. The complaint alleged in the FIR that he was a student and on 19.11.1995 at about 9 AM he went out to buy sweets at Aggarwal Sweets, Main Bazar, Inderpuri. He met four boys Kaku (accused Gurvinder Pal Singh), Billo (Inder Pal Singh), Motu (Jitender Singh) and Meena (Harvinder Pal Singh) who were known to him from before as they also resided in the same locality. They started giving fist blows and kick to him inside the shop. Billo i.e the petitioner No. 2 Inder Pal Singh snatched a chain which he was wearing around his neck. He suffered injuries at his face. Jitender Singh petitioner No. 1 snatched away his black purse from the pocket of his shirt. The purse contained his driving licence, some visiting cards and Rs. 3000/-. He started shouting whereupon the petitioner No. 2 Inder Pal Singh threatened that he would not spare him and he also gave threats to kill him pointing a country made pistol at him (complainant). The complainant further alleged that he however managed to escape and reached the car which was driven by his uncle Rajiv and went back home.
3. After the investigation the police submitted a challan for the prosecution of Gurvinder Pal Singh, accused for offence under Sections 341 and 323, IPC. In the charge-sheet it was alleged that though the case was registered under Sections 394 and 506, IPC but during the investigation the statements of the witnesses were recorded which disclosed the commission of the offence under Sections 341 and 323, IPC so the offence was altered on 15.12.1995 from 394 and 506, IPC to 341 and 323 IPC against only Gurvinder Pal Singh. It was further alleged that the injuries of the complainant Sanjay were simple and Sanjay was also asked to produce the witnesses. The accused was released on bail.
4. After the charge-sheet was filed the learned Magistrate took cognizance on 16.2.1995 of the offence under Sections 394 and 506 IPC and issued summons to the accused (Gurvinder Pal Singh) for 7.6.1996 The said accused appeared before the court and was granted regular bail. Thereafter the case was adjourned for hearing on the question of charge on 24.10.1996, 21.1.1997 and 9.1.2002 The learned Magistrate considered the case and passed the following order which is impugned in this petition.
I have considered the facts and circumstances of the present case. Particularly, the complaint lodged by complaint Sanjay Kumar S/o Nageshwar Pandey. I have also gone through the explanation filed by the IO. It appears that IO has not fairly investigation the present case and therefore, before proceeding further, I order that other accused named in the complaint should also be summoned as they are equally involved during the commission of the offence. The case has also been registered for the lesser offence whereas according to the statement of complainant, a clear case of robbery as punishable under Sections 323/394/397 alongwith Section 506 (II), IPC is made out. IO is present and is directed to produce the remaining three accused named by the complaint for 8.3.2002”
The petitioners who were not sent for trial alongwith Gurvinder Pal Singh are aggrieved by this order and have filed the instant petition.
5. The argument of the counsel for the three petitioners are two fold. Firstly the Magistrate had taken cognizance of the case on 16.2.1995 on the charge-sheet submitted against accused Gurvinder Pal Singh. Thereafter the case was posted for hearing on charge and it was adjourned on a few dates but on 9.1.2002 the learned Magistrate summoned these petitioners also to stand trial alongwith Gurvinder Pal Singh for offence under sections 323/394/397 & 506 (ii), ipc. She argued that the learned Magistrate had no power to take cognizance of the offence in a case twice. Once the cognizance of the offence had been taken on 16.2.1996 the learned Magistrate had no power and jurisdiction to take the cognizance again on 9.1.2002 and summon these petitioners to face trial. She further argued that taking cognizance under Section 190, Cr.P.C the Magistrate had proceeded further in the case, therefore, she could not revert back to the first stage (i.e of taking cognizance) and that additional accused persons could be summoned by the learned Magistrate only under Section 319 of the Cr.P.C which power can be exercised only after the evidence has been recorded. The second argument of the counsel for the petitioners is that the order of summoning of these petitioners as an accused in the case has been passed by the learned Magistrate without application of mind and without considering the material on record. It was contended although the complaint Sanjay Kumar had made statement that his purse and chain were snatched away and a country made pistol was shown to him by the accused during the course of the quarrel which had taken place on 19.11.1995 but other witnesses namely Mohar Singh and Lalak Singh have not corroborated his version. As per their statement there was no incident of snatching of chain or purse or use of a country made pistol to give threat to the complainant. For these reasons the learned Magistrate was not justified in observing that the investigation officer had not conducted the investigation fairly. It was argued that a supplementary statement of the complainant was also recorded on 15.12.1995 in which he had stated that his purse chain and driving licence were returned to him by one Ravinder Vasudev, advocate who found them as lost articles lying on the ground outside Aggarwal Sweets shop on the day of the incident i.e 19.11.1995 but he could not return the same to the complaint earlier. Reading of the supplementary statement of the complaint Sanjay Kumar and Ravinder Vasudev would show that no incident of chain or purse snatching had taken place on 19.11.1995, therefore, the learned Magistrate erroneously observed that the investigation officer had not properly investigated the case and the original complaint showed the involvement of the petitioners also in the commission of t he offence. She has strenuously canvassed for setting aside the order of the learned Magistrate impugned in the petition. Counsel for the petitioner has referred to Ranjit Singh v. State of Punjab, 1998 VII AD (SC) 217 in support of her argument.
6. APP controverting the argument of the counsel for the petitioner has argued that the Magistrate has power to take cognizance of an offence under Section 190 of the Cr.P.C and the cognizance of the offence had already been taken by the learned Magistrate in this case on 16.2.1996 and thereafter she had summoned some other persons, who in her view had also committed the offence. Magistrate has power under Section 190, Cr.P.C to do that. In the instant case the charges have not been framed as yet and there was no legal bar for the learned Magistrate to summon some other persons also who have not been named in the challan and sent for trial by the police if he has a reason to believe that the said persons were also involved in the crime. She has strongly relied upon the judgment of the Supreme Court in Rajinder Prasad v. Bashir and Ors., 2001 VII AD (SC) 568.
7. It seems that the counsel for the petitioner has not made distinction between taking of the cognizance of an offence by a Magistrate in exercise of its power vested in him by Section 190, Cr.P.C and the summoning of a person, who in his view had also committed an offence, for trial before him. She seems to be under a misconception of law that cognizance is taken against an accused person and not of ‘an offence which has been committed. She has also not fully appreciated the distinction between the powers of the court given by Section 190 and 319, Cr.P.C Both these provisions being relevant for dealing with the arguments raised by the counsel for the petitioner are reproduced below :—
“190. Cognizance of offences by Magistrates
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-Section (2), may take cognizance of any offence :—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed;
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-Section (1) of such offences as are within his competence to inquire into or try.
319 Power to proceed against other persons appearing to be guilty of offence
(1) Where, in the course of any inquiry into, or that of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under sub-Section (1) then—
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.”
8. Before proceeding further it may be noted that it has not been disputed on behalf of the petitioner during arguments that on the basis of the statement and the charge-sheet the cognizance of the offence was taken by the Magistrate under Section 190, Cr.P.C Section 190 empowers the Magistrate to take cognizance of any offence (1) upon receiving the complaint of facts which constitute such offence ; (2) upon a police report of such facts ; (3) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. The Magistrate has power and jurisdiction to take cognizance of the offence under this provision against another person who has not been sent by the police as an accused person if from the evidence collected by the police or the material or information placed before him it appears to the Magistrate that prima facie an offence has been committed by such and such person. In Raghubans Dubey v. State Of Bihar, 1967 (2) SCR 423 the Supreme Court has laid down that the cognizance taken by the Magistrate under Section 190, Cr.P.C was of the offence and not of the offenders. After taking cognizance1 of the offence the learned Magistrate has to find out as to who were the offenders who have committed the offence cognizance of which has been taken. In case he is of the view that some other persons have also committed the offence besides the person who had been sent by the police he has power and jurisdiction to proceed against those persons also. Power and jurisdiction of the Magistrate as such is not bound with what has been disclosed or stated in the charge-sheet alone. Section 190 is of a widest amplitude and sufficiently arms the Magistrate to proceed with the trial of those persons whom the police did not care to send for trial naming them as accused in the charge-sheet or who have not been referred to in the charge-sheet if from the evidence and the material placed before him it appears to him that some other persons are also involved in the commission of the offence.
9. Section 319 on the other hand is enacted to serve a different purpose. If during the trial and enquiry it appears to the trial court whether as a Magistrate or a Sessions Judge that some other persons are also involved in the commission of the offence for which he is holding the trial he can invoke Section 319, Cr.P.C for summoning them to be arrayed as an accused and to stand trial before him in the same case. Counsel for the petitioner has fairly conceded that the stage at which the learned Magistrate has summoned the petitioner to be arrayed as an accused and face trial Section 319 could not have been invoked. No quarrel has been raised on this point by any of the parties. This leaves for decision a critical question whether the learned Magistrate had power to summon the petitioner to be arrayed as an accused and face trial alongwith Gurvinder Pal Singh in this case.
10. The argument of the counsel for the petitioner was on the premise that the learned Magistrate having taking the cognizance in the matter on 16.2.1996 could not have invoked his power under Section 190, Cr.P.C again to summon the petitioner as an accused. He seems to be harbouring under a misconception that the learned Magistrate after taking cognizance of offence under Section 190, CrP.C had no power to summon some other persons who in his view were also involved in the commission of the offence. This point is squarely covered by the judgment of the Supreme Court in Raghubans Dubey v. State Of Bihar which was approved by the Supreme Court in M/s. Swil Ltd. v. State of Delhi & Anr., JT 2001 (6) SC 450 wherein it was held :—
“In the present case there is no question of referring to the provisions of Section 319, Cr.P.C That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case ; neither the Magistrate as holding inquiry as contemplated under Section 2(g) Cr.P.C nor the trial had started. He was exercising his jurisdiction under Section 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190 Cr.P.C that once the process is issued against some accused on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet.”
11. This judgment is again been approved by the Supreme Court in Rajender Prasad (Supra). Faced with the law laid down by the Supreme Court in the above cited case argument of the counsel for the petitioner now is that the Magistrate can issue process to other offenders on the next date but in the instant case the process has been issued to the petitioner many days after the cognizance of the offence was taken on 16.2.1996 The argument has no force at all. Words ‘next date’ used in the judgment of M/s. Swil Ltd. (Supra) are not to be given literal meaning but the ‘next date’ means the subsequent dates. In the instant case also the learned Magistrate on the basis of the FIR and material placed on record has’ summoned the petitioners, who were not arrayed as accused in the charge-sheet, before the charges were framed. The first argument of the counsel for the petitioner is untenable in law. It is therefore repelled.
12. Now I take up the second contention of the petitioners. From the FIR, the evidence and the material on record it appeared to the Magistrate that besides Gurvinder Pal Singh, three petitioners had also committed offences under Sections 323/394/397 and 506(H), IPC and that they should also be tried for the offence in this case. She has summoned them. The argument of the counsel for the petitioner that the complainant in his supplementary statement deviated from the allegations made by him in the FIR or the recording of the statement of Gurvinder Pal Singh who claimed to have found the purse and the chain etc. outside the shop of Aggarwal Sweets where according to him this occurrence had taken place on the date of occurrence and he has returned it to the complainant on 15.12.1996 or even the statement of the witnesses who had been examined during the investigation by the IO are not to be appraised at this stage. The question is whether there is impropriety or illegality in the order of the learned Magistrate in issuing process against the petitioners as accused for trial. After the petitioners appear the trial will proceed in accordance with the procedure prescribed. The question whether the evidence involving these petitioners in the offence and accused Gurvinder Pal Singh, who has been sent by the police for trial, is unsustainable is the question to be argued at the time of framing of the charge. The present stage is of only taking cognizance and subsequent thereto issuing process to more persons as accused in this case. The arguments on charge are still to be heard. Therefore, the contention of the petitioner and the other two witnesses of the prosecution Lalak and Mohak that there was fight between the complainant and one young Sikh and that the chain and purse were not snatched during this incident and use of a country made pistol etc. are the questions to be urged and taken into consideration by the trial court at the time of the framing of the charge against the accused.
13. For the reasons stated above there is no merit in the petition. The impugned order of the trial court does not suffer from impropriety, illegality or perversity and does not warrant any interference by this court. The petition is, therefore, dismissed.