Varma, J.:— A rule was issued in this case in respect of 5 out of 19 petitioners who were in the first instance tried and convicted by Mr. Rahman, a First Class Magistrate of Bihar, in the district of Patna, under S. 147, Penal Code, and sentenced the nine months' rigorous imprisonment each, but on appeal their sentences were reduced to six months' imprisonment by the Additional Sessions Judge of Patna.

2. The prosecution case is that one Mathura Prasad Singh of village Gorewan is the purchaser of two and half annas milkiat in touzi Nos. 11029, 10874 and 10775 of village Nerut. He purchased it from one Mt. Premdei Kuer in the month of Phagun 1339 F.S There was a mutation case between him and one Naurangi Singh, a co-sharer of the deceased husband of Premdei Kuer, and the case was decided in favour of Mathura Prasad. The property purchased by Mathura Prasad includes 34 bighas of khudkasht lands of which two plots bearing Survey Nos. 348 and 429 are those with which we are concerned in this case. On plot No. 348 there was sugarcane grown and plot No. 429 happens to be an orchard. In January 1933, Mathura Singh sent an elephant to the village to feed on the sugarcane crop on the khudkasht land while some of his men were staying in the orchard. For some days there was no obstruction but on the 5th February at about 10 a.m, a mob including the petitioners came and assaulted Mathura Prasad's men and also inflicted injuries on the elephant. The defence was that the purchase by Mathura Prasad was a colourable transaction and that he never got possession of any of the properties said to have been purchased by him, that on the day of occurrence his men had gone to take forcible possession of the khudkasht land, and that when opposition was offered a fight took place in which some persons were injured. Some of the accused pleaded that they were falsely implicated in the case on account of enmity. It was also alleged that the sugarcane crop standing on plot No. 348 was not grown by the men of Mathura Prasad but that it was grown by one Karu. The present petitioners were sent up for trial along with the other accused persons and they have been convicted and sentenced as stated above. The case came up for hearing on 6th March 1934, when Macpherson and Agarwalla, JJ., called for an explanation in the case from the District Magistrate as to whether the Subdivisional Officer, when he transferred the case on 28th February 1933, to the file of the Magistrate who tried and convicted the petitioners along with the other accused, intended to transfer the whole case including the case against the present petitioners, or the case only of those persons against whom the police recommended that the case should be started. That explanation has now been received, and the Subdivisional Officer says:

“It was never my intention to take cognizance of the whole case including the case regarding the 8 accused when the police desired to be released from Hajat or bail. I took cognizance only in respect of the persons sent up by the police and it was certainly my intention that the investigation should proceed only with regard to the persons who were sent up by the police.”

3. Relying on this explanation, it is argued on behalf of the petitioners that the Subdivisional Officer never took cognizance of the case against the present petitioners and therefore Mr. Rahman to whom the case was transferred by the Subdivisional Officer had no jurisdiction to try the petitioners. It is necessary to look into the order sheet of the case to find out the manner in which the learned Magistrate had been dealing with the case against the petitioners when he came to transfer it to the Court of Mr. Rahman. As I have already stated, the case was transferred on 28th February. On 21st February 1933, the Subdivisional Officer passed the following order:

“I have perused the diary of the case and the supervision note of the D.S.P There are 29 accused in Hajat for whom bail petition has been moved and the 80th man viz. Beasat Khan surrenders to-day. The diary shows that there is no conclusive evidence under S. 436, I.P.C The other sections are all bailable and I think that bail should be granted in the case. Accordingly I direct that all the 29 accused be enlarged on a bail of Rs. 500 each. The accused surrendering to day will also give bail of the like amount. The C.S.I prays for test identification. The Sub-Deputy Magistrate will please hold the test identification. Put up now on 3rd March 1933 by which date police should submit its report.”

4. It will be seen that on 21st February in the opinion of the learned Subdivisional Magistrate, all the accused persons who were in custody were eligible for bail and he did grant them bail, and he was also of opinion that there was no opinion, so far as the offence alleged under S. 436 was concerned which was a non bailable offence. On 24th February 1933, two of the accused, Dhirik and Janki, were remanded to Hajat for 3rd March 1933. On 28th February 1933, the order runs as follows:

“Charge-sheet received against 23 accused with a prayer that two of the accused in Hajat should be released from Hajat and 6 of the accused be released from bail. The charge-sheet is for 3rd March 1933 but, there is no Court available on that date. This case is transferred to the file of M. Shah Waliur Rahman to be taken up by him on 15th March 1933 when his diary shows he is free. Inform the S.I take P.R of the P.Ws for that date for appearance before the Second Officer, Put up on 3rd March 1933 also before the Second Officer for passing a remand order on the accused and for taking fresh bail.”

5. On 3rd March 1933, Mr. Rahman to whose Court the case was ??? passed the following order:

“The case has been transferred for 15th. The accused are present to-day. They may be released on bail of Rs. 500 each for 15th.”

6. At present we are not concerned with what his intentions were when ??? transferred the case from his file, by we have to see whether what he ??? on 28th February amounted to takin cognizance of the offence or not. For this purpose we have to refer to some of the earlier orders and that is which I have quoted them in extenso. When the charge sheet was received at lease two of the accused were in custody and the others were on bail. The learned Subdivisional Magistrate ??? transferring the case to the file of ??? Rahman ordered personal cognizance to be taken of the prosecution witness for 15th March 1933. He also order that these things should be placed before the Second Officer on 3rd Marc 1933, for passing a remand order of the accused and for taking fresh ??? There is nothing in this order to indicate that he was excluding the petitioners from the operation of his order simply because the police did not war to proceed against them. Therefore the order of 28th February 1933, read wit the earlier orders, in my view, amount to taking cognizance of the offence ??? the Subdivisional Magistrate. Under Section 190 of the Cr PC, cognizance ??? taken of the offence and not necessarily of the individual offenders whose names transpire in the course of the investigation. In the case of 37 Cal 412 (1), it was laid down that:

“taking cognizance does not involve any forms action or indeed action of any kind but ??? as soon as a Magistrate, as such, applies his mind to the suspected commission of a offence.”

7. In this case, if the Subdivisional Magistrate acted at all, the order for transfer was evidently made under S. 192 of the Code, and unless he has taken cognizance of the case he could not have transferred it to a Subordinate Magistrate. The real confusion seems to have arisen by losing sigh of the fact that cognizance is taken of an offence and not of individual of fenders. The case of 1933 Pat. 244 (2) clearly points out that the expression “case of which he has taken cognizance” in Section 192(1) of the Cr PC means nothing more than the judicial investigation into any offence of which ??? has taken cognizance. The explanation of the Subdivisional Magistrate that “he took cognizance only in respect of the persons sent up by the ???” in the light of above observations means only this that he took ??? of the offence and his ??? in transferring the case without ??? any of the petitioners shows ??? he transferred the whole case for ??? I am therefore of opinion that ??? argument that the petitioners were ??? without jurisdiction cannot ???. The other point was that there was petition filed on behalf of the accused praying that Parthu Singh should be ??? for further cross-examination on questions which were left out ??? The learned Magistrate sued summons through a special ??? for Sunday 28th May 1933, here were some other witnesses also ??? by the accused; but the order recorded on 28th May 1933, runs ??? follows:

“Accused did not examine any witness in ??? Parthu Singh who was summoned is ??? and S.R shows that process was not served ??? him. I can't drag on the case for this witness, heard argument, written statement filed, at up on 31st May 1983 for orders.”

8. Thereafter the Magistrate proceeded ??? deliver his judgment which he did ??? 31st May 1933. From the order of 2nd May 1933, it appears that the Magistrate summoned Parthu Singh for 18th May but the witness did not turn ??? and the Magistrate was anxious ??? dispose of the case by 31st May 1933. The order of 22nd May was in affect a conditional order, that Parthu Singh would be examined if his attendance could be secured on 28th May. Objection might fairly have been taken ??? such an order if the accused had been entitled as a matter of right to ??? Parthu Singh for cross-examination; but he had already been re-summoned and cross-examined after the framing of charges. This application for a second re-call might have been properly refused outright, on the ground that the witness should not be further harassed, or on the ground that the accused, having exercised their right of re-calling the witness, should not be permitted to drag out the case by recalling him again. In the circumstances, it cannot be said that the learned Magistrate, making his conditional order re-calling the witness, committed himself to keeping the case pending until all available means for securing the attendance of the witness had been exhausted. No prejudice can be said to have been caused to the petitioners, since Parthu Singh had already been cross-examined, especially when no defence witnesses were examined by them on 28th May 1933. Moreover this point does not seem to have been taken in the Court below, and if there was any merit in it, one would expect it to have been urged prominently before the lower appellate Court. So this point also does not help the petitioners. In the result the rule is discharged; the petitioners must surrender to their bail to serve out the remaining portion of their sentence.

James, J.:— I agree.

V.S

9. Rule discharged.