GODARA, J. - (1.) THIS Criminal Misc. Petition has been filed under Section 482, Cr. P. C. invoking inherent jurisdiction of this Court being aggrieved by the order dated 24. 10. 97 passed by the learned Addl. Sessions Judge, Barmer in Criminal Revision Petition No. 23/97 whereby, while dismissing the revision petition filed by the petitioner, the impugned order dated 15. 10. 97 thereby cognizance of offences under Sections 307, 302, 323, 325, 147, 148 read with Section 148, I. P. C. was taken against the accused-petitioners who were ordered to be added as co-accused persons along with five accused-persons challaned for aforesaid offences by the police of Barmer.
(2.) BRIEFLY stated, the facts giving rise to the present petition are that Kistura Ram, the first informant lodged a written report at the Police Station, Sadar, Barmer on 15. 7. 97 at 2. 40 A. M. against Thakra Ram, Uma Ram, Meha Ram, Kana Ram, Amra Ram, Girdhari Ram, Padma Ram and Punama Ram, including the present petitioners, alleging that on 14. 7. 97 he along with Lumba Ram, Lala Ram and Jai Ram had gone to his field situated bordering the village Banthiya for `nirai' of the crop. At about 8 P. M. while they were returning to their house, on reaching near the field of Kachhab Singh, all the accused-persons so named in the report, being armed with axes and lathis conjointly started beating and assaulting Kistura Ram, Lumba Ram and, after they were subjected to serious and grievous injuries, the assailant took to their heels and escaped from there. Both Kistura Ram as well as Lumba Ram were taken to the hospital in a serious condition whereat Lumba Ram succumbed to the injuries. Kistura Ram being seriously hurt received simple as well as grievous injuries with blunt weapons. Resultantly, F. I. R. No. 152/97 was registered and investigation was taken up by the Officer-in- charge of the Police Station. He inspected the site of occurrence and prepared site memo along with its memoran- dum, inquest report of the dead body of Lumba Ram and the post-mortem report and the injury report of Kistura Ram were also obtained. The statements of eye-witnesses Lala Ram, Rukhmana Ram, Kumari Maloo, Kistura Ram, Jai Ram and Purkha Ram were recorded on 15. 7. 97 itself who named as many as 8 accused-persons including the present petitioners who were injured in the incident resulting in death of Lumba Ram besides injuries to Kistura Ram. Consequently, all the accused-per- sons were arrested and produced before the learned Magistrate on 17. 7. 97 in police custody when they were required to be remanded to judicial custody and, accordingly, an order was passed. The petitioners Thakara Ram, Padama Ram and Meha Ram were all named by the aforesaid witnesses as co-accused-persons of the rest of the five accused-persons who have been, resultant upon investigation, challaned before the trial Court but, any how, the names of the present petitioners being so mentioned in the statements of the witnesses on 15. 7. 97 besides the F. I. R. itself, the same having resulted in arrest of the accused-petitioners as well, subsequently, any how, from the side of complainant, an application having been presented before the Circle Officer (Dy. S. P.), Barmer, he proceeded to record supplementary statements of the witnesses of the occurrence on 25. 9. 97. Consequently, he examined Kum. Maloo, Jai Rama, Smt. Puro, Vishana Ram, Gamana Ram and Purkha Ram etc. and, on the basis of supplementary statements of these witnesses, a report under Section 169/172, Cr. P. C. was filed simultaneously with the charge-sheet for alleged commission of the aforesaid offences against the rest of the five accused- persons named as co-accused of the present petitioners in the F. I. R. lodged on 15. 7. 97 itself and it was requested that the accused-petitioner be released since there was no material to proceed against the accused- petitioners. However, being aggrieved, Kitura Ram, filed a protest petition before the lower court alleging that there were good grounds existing to believe involvement of the accused- petition- ers as well in commission of the aforesaid offence along with other co-accused persons against whom a charge-sheet was filed and hence cognizance of the alleged offences be also taken against the accused-petitioners and they be also proceeded against according to law. However, this protest petition filed by the complainant was seriously opposed to by the accused-persons and, after giving an opportunity to be heard to both the sides, the learned Magistrate, vide his order dated 15. 10. 97, holding that there were no grounds to discard earlier statements of the witnesses examined by the officer-in-charge of the Police Station who also investigated this case as early as on 15. 7. 97 and, resultantly, since all these accused-persons were also named as assailants and being involved in commission of the aforesaid offences, resulting in death of Lumba Ram and multiple injuries to Kistura Ram and hence there being no valid justification for the Circle Officer of the Police, Barmer to have re-examined all these witnesses previously examined and, at the time of filing of police report under Section 169/172, Cr. P. C. to have overlooked the statements of witnesses recorded on 15. 7. 97 besides the F. I. R. and its author Kistura Ram, who himself is an injured person and, consequently, while relying on the F. I. R. , statements of Kistura Ram as well as other witnesses so examined on 15. 7. 97, the learned Magistrate held that there were good grounds to hold that the accused-petitioners were also involved in commission of aforesaid offences resulting in impugned order taking cognizance of the aforesaid offences against the accused- petitioners and the order dated 15. 10. 97 so having been confirmed resulting in dismissal of criminal revision petition by the learned Addl. Sessions Judge, Barmer, has given rise to the present petition, as above. I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor and have also perused and considered the legality, propriety as well as regularity of the impugned order and considered the same carefully. To dispose of the controversies as raised above, it is to be determined: (i) whether the court of Addl. Civil Judge-cum-Judicial Magistrate, Barmer was not empowered to have taken cognizance of offences u/ss. 302, 307, 323, 325, r. w. Sec. 149, I. P. C. against the accused-petitioner left out by the police from the array of accused-persons in the charge-sheet, to be added as accused-persons in the charge-sheet to be added as accused-persons in exercise of power u/s. 190 (1) (b), Cr. P. C. , before commitment; and (ii) whether there were no grounds for taking cognizance of the said offences against the accused petitioners and hence the impugned orders of the lower courts are liable to be set aside. These points are taken to be disposed of ad seriatim. Re. :1 Though the accused-petitioners were also named in the F. I. R. lodged by Kistura Ram as the assailants of the deceased as well as his own and the witnesses also, in the first instance, when examined by the investigating officer, named the three petitioners as well as assailants but, relying on their subsequent statements recorded by the Dy. S. P. , in which they allegedly omitted the names of the petition- ers, on the protest of the first informant Kistura Ram, the learned Magistrate took cognizance of the said offences against the petitioners as well as the revisional court also did not find any illegality or impropriety in the same, dismissing the revision petition as well. Section 190 (1) (b), Cr. P. C. provides that the Magistrate subject to the pro- visions of this Chapter (XIV), may take cognizance of any offence upon a police report of such facts. The Code has prescribed the modes of taking cognizance by the courts competent to try the same. Taking of cognizance of offence necessary requirement before initiation of further proceedings can be commenced. The Court taking cognizance of any offence is required to apply its mind to the facts of the case placed before it either upon a police report, as is the instant case, or upon a complaint, or in some other manner the court comes to know about it and in the case of Court of Sessions upon commitment of the case u/s. 209, Cr. P. C. to overcome the embargo of Sec. 193, Cr. P. C. , unless there is contrary legal provision giving go by to the necessity of commitment.
(3.) SO, as and when a police report under Section 170/173, Cr. P. C. is filed in the court against certain persons, alleging commission of certain offences which are either triable by the Magistrate, in whose court the same in filed, or the Court of Sessions, the Magistrate being competent to take cognizance of such offences under Section 190 (1), Cr. P. C. , in case the offences are exclusively triable by a court of Sessions, before proceeding to commit the case to the Court of Sessions, has to take cognizance of the case disclosing commission of alleged offences and, as a part of the same process of taking cognizance of the case and the offences, he has to simultaneously ponder over the question as to who are the offenders who appear to have committed those offences as disclosed from the charge-sheet and the con- nected material and documents filed by the police in support of the allegations of the charge-sheet. As is the instant case, when the charge-sheet is against some persons accused of committing those offences but some persons similarly accused have been left out from the array of the accused-persons and, either on the protest of the prosecution or the complainant or suo motu, the court applies its mind to the aforesaid material and documents filed in support of the police report and comes to the conclusion that some persons left out of charge-sheet also appear or are found to be prima facie liable to be proceeded against and added as accused-persons along with those charge-sheeted by the police, it becomes the judicial duty of the Magistrate to proceed against all such persons and consequently, the Magistrate has to take cognizance of the offences disclosed in the case and simultaneously to find out the accused-persons produced or appearing before the court in the case and those excluded or left out in the police report/chargesheet by the police. In case there are grounds to believe that there are certain persons who have been left out by the police not filing charge-sheet/police report against them, before committing the case to the court of Sessions u/s. 209, Cr. P. C. , the Magistrate is to ponder over and find out as to who the real offenders in the case to be forwarded to the court of Session while committing the case to the Sessions Court to be tried. In case some accused are neither produced before him nor are they appearing before him, the Magistrate can summon such persons by taking cognizance of such offences against them on the basis of the material and documents filed along with the police report/charge-sheet so as to be sent to the court of Session so as to stand trial for commission of those offences. In the instant case too, the learned Magistrate took cognizance of the alleged offences against the accused-persons. ;