Ravindra Singh, J. - (1.) THIS Appli cation has been filed by the applicants namely, Ritesh Saxena alias Reetu, Anirudha Gupta alias Annu Gupta, Sanjay Gupta alias Dabbu and Amit Gupta alias Pintoo Gupta with a prayer to quash the order dated 21.3.2009 passed by learned Chief Judicial Magistrate, Farrukhabad in criminal case No. 5732 of 2007 under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST Act whereby the learned Chief Judicial Magistrate concerned has taken the cognizance and summoned the applicants by way of issuing Non-Bailable Warrants.
(2.) THE facts, in brief, of this case are that the FIR of this case has been lodged by O.P. 2 Suresh Diwakar at police station Kotwali, District Farrukhabad on 7.2.2007 at 11.30 p.m. in respect of the incident which had occurred on 7.2.2007 in case crime No. 108 of 2007 under sections 302 and 506 I.P.C. and section 3(2)(v) of the SC/ST. Act, the FIR was lodged against the applicants alleging therein that the appli cants have committed the murder of the deceased Sanjay Diwakar who was a prac tising advocate of the Income Tax. It is al leged that the deceased was caught hold by the applicant Reetu, Annu and Sanjay, thereafter, the applicant Pintu Gupta caused gun shot injury on the neck of the deceased, all the accused applicants were armed with fire arms, the alleged incident was witnessed by the brothers of the de ceased namely, Sonu and Monu, after in vestigation, the I.O. submitted the charge-sheet only against Ranjeet Kumar Gupta under section 304-A I.P.C., the charge-sheet was not submitted against the applicants. On the basis of the charge-sheet forwarded by the officer-in-charge of the police station concerned, the learned Chief Judicial Magistrate, Farrukhabad has taken the cognizance and summoned the accused Ranjeet Kumar Gupta on 24.12.2007, thereafter an application dated 21.2.2009 has been filed by O.P. No. 2 in the Court of learned Chief Judicial Magistrate, Farrukhabad for sum moning the applicants for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST. Act, the charge-sheeted accused Ranjeet Kumar Gupta also moved an application in the Court of Chief Judicial Magistrate, Farruk habad with a prayer that he has been falsely implicated in the present case whereas the real accused persons were not named in the FIR who have not been charge-sheeted due to their influence, therefore, he may be discharged under sec tion 304-A I.P.C., thereafter the learned Chief Judicial Magistrate, Farrukhabad summoned the applicants and co-accused Ranjeet Kumar Gupta for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST, Act vide order dated 21.3.2009. Being aggrieved from the order dated 21.3.2009, the present application has been filed by the applicants with a prayer to quash the same. Heard Sri Rajiv Sharma, learned Counsel for the applicants, the learned A.G.A. for the State of U.P., Sri R.B. Shukla and Sri Deepak Dwivedi appearing on behalf of O.P. No. 2. It is contended by learned Counsel for the applicants that in the present case, the charge-sheet, has not been submitted against the applicants, it has been submit ted only against Ranjeet Kumar Gupta un der section 304-A I.P.C., on which the learned Chief Judicial Magistrate, Farruk habad has taken the cognizance on 24.12.2007 after considering the police re port, but it is surprising that the learned Chief Judicial Magistrate has taken the cognizance and summoned the applicants and co-accused Ranjeet Kumar Gupta for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST, Act, the summoning of the applicants at this stage vide order dated 21, 3.2009 is ille gal because on the basis of the police report submitted by the I.O. the learned Magistrate concerned has taken the cognizance of the offence and had summoned co-accused Ranjeet Kumar Gupta, it shows that the learned Chief Judicial Magistrate con cerned was satisfied on the police report for taking the cognizance for the offence under section 304-A I.P.C. only against the co-accused Ranjeet Kumar Gupta but by subsequent order dated 21.3.2009, the learned Magistrate concerned has again taken the cognizance for the offences under sections 302 and 506 I.P.C. and section 3(2) (v) of SC/ST, Act against the applicants as well as co-accused Ranjeet Kumar Gupta, the order dated 21.3.2009 amounts to re view of his earlier order dated 24.12.2007 which is not permissible in law. The Trial Court was competent to exercise the pow ers under section 319 Cr.P.C. on the basis of the evidence if comes forward before the Trial Court. During the investigation, the version of the FIR was totally disbelieved and I.O. has come to the conclusion that alleged occurrence has not taken place in the manner as mentioned in the FIR but it has occurred in some other manner and the deceased has sustained injury accidentally. The shot was discharged by the co-accused Ranjeet Kumar Gupta, the applicants are innocent, they have not committed any of fence but they have been falsely implicated in the present case and they have been ille gally summoned to face the trial.
(3.) IN reply to the above contention, it is submitted by the learned A.G.A. and learned Counsel appearing on behalf of Opposite Party No. 2 that O.P. No. 2, being the first informant of this case, was having right to challenge the charge-sheet in which the applicants were not charge-sheeted and the charge-sheet was illegally submitted under section 304-A I.P.C. only against Ranjeet Kumar Gupta whereas during in vestigation, the I.O. has collected the ample evidence disclosing the participation of the applicants in the commission of the offence punishable under sections 302 and 506 I.P.C. and section 3(2)(V) of SC/ST Act The order dated 21.3.2009 does not amount to review of the order dated 24.12.2007 by which the learned Magistrate concerned has taken cognizance under section 304-A I.P.C. on the basis of charge- sheet submitted against the co-accused Ranjeet Kumar Gupta, the learned Magistrate concerned is empowered to consider the material col lected by the I.O. and to take the cogni zance for the offence which is made out on the basis of the allegation made against accused persons and the learned Magis trate concerned was legally empowered to summon the applicants to face the trial be cause there was sufficient material col lected by the I.O. for their prosecution. The learned Magistrate concerned has not committed any error in passing the im pugned order dated 21.3.2009, the present application is devoid of merit and the same is liable to be dismissed. Considering the submissions made by learned Counsel for the appli cants, learned A.G.A. for the State of U.P. learned Counsel appearing on behalf of O.P. No. 2 and from the perusal of the rec ord, it appears that in the present case the FIR has been lodged by O.P. 2 against the applicants in case crime No. 108 of 2007 under sections 302 and 506 I.P.C. and sec tion 3(2)(V) of SC/ST Act at police station Kotwali, District Farrukhabad on 7.2.2007, the specific allegation has been made against the applicants in the FIR that the deceased was caught hold by the appli cants Annu, Reetu and Sanjay, thereafter gun shot injury was caused on his person by the applicant Pintu Gupta, the alleged incident has occurred in the presence of Sonu and Monu, the real brothers of the deceased but the I.O. after collecting the evidence has not submitted charge-sheet against the applicants, the charge-sheet has been submitted against Ranjeet Kumar Gupta who was not named in the FIR, it has been submitted for the offence punish able under section 304-A I.P.C., the I.O. has come to the conclusion that in a function, negligently a shot was discharged by Ran jeet Kumar Gupta which hit the deceased, the charge-sheet has been submitted by the I.O. with a new version whereas alleged eye-witnesses have supported the version of the FIR, after submission of the charge-sheet, the learned Chief Judicial Magistrate has taken the cognizance of the offence punishable under section 304-A I.P.C against Ranjeet Kumar Gupta on 24.12.2007, thereafter, the first informant has filed an application dated 21.3.2009 against the charge-sheet submitted by the I.O. with a prayer that the accused persons may be summoned for the offences punish able under sections 302 and 506 I.P.C. and section 3(2)(v) of the SC/ST Act and to proceed further against co- accused Ranjeet Kumar Gupta, according to the provisions of law, thereafter an application No. 56-B has also been filed by Ranjeet Kumar Gupta claiming his discharge for the of fence punishable under section 304-A I.P.C., thereafter, the CJM Farrukhabad perused the police report and came to the conclusion that the offence under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST Act prima facie is made out against the applicants and co-accused Ranjeet Kumar Gupta and the applicants have also been summoned to face the trial vide order dated 21.3.2009. The impugned order dated 21.3.2009 cannot be said to be review of the order dated 24.12.2007 because the learned Magistrate concerned is legally empowered to summon the persons who have not been charge-sheeted, on the basis of the material collected by the I.O. disclosing the com mission of the offence and the participation of such person in spite of the impugned order, passed by the learned Magistrate concerned on the basis of the police report in which the cognizance was taken and that person was not summoned as accused. The learned Magistrate concerned is empow ered to take the cognizance in exercise of power conferred under section 190 (1)(b) of the Cr.P.C. against the persons who have not been charge-sheeted. It cannot be said that the learned Magistrate concerned can not summon the person who has not been summoned earlier at the time of taking the cognizance, once the cognizance has been taken by the learned Magistrate concerned, he takes the cognizance of an offence and not the offenders; once the cognizance has been taken of an offence, the learned Mag istrate concerned is duty bound to find out the real offenders, the summoning of the additional accused is part of the proceed ings initiated by his taking cognizance of an offence. This view has been taken by the Apex Court in the case of M/s. SWIL Ltd. and others v. State of Delhi and another, 2001 (43) ACC 591 para 5 of the above judgment is relevant which reads as under: - "In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of section 190 Cr.P.C. would be applicable. Section 190 inter alia provides that the Magis trate may take cognizance of any offence upon a police report of such facts which constitute an of fence. As per this provision, Magis trate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under section 204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether proc ess should be issued against par ticular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge-sheet. Further, upon receipt of police re port under section 173(2) Cr.P.C., the Magistrate is entitled to take cognizance of an offence under section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and in dependently applying his mind to the facts emerging from the inves tigation by taking into account the statement of the witnesses exam ined by the police. At this stage, there is no question of application of section 319 Cr.P.C. Similar con tention was negatived by this Court in Raghubans Dubey v. State of Bihar, 1968 (5) ACC 69 (SC) by holding thus: "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 per sons sent up by the police some other persons are involved, it is his duty to proceed against those per sons. The summoning of the addi tional accused is part of the pro ceeding initiated by his taking cognizance of an offence.";