A.K.SINGH, J. - (1.) HEARD the learned Counsel for the petitioner, learned Counsel for the complainant and the learned Public Prosecutor. Perused the case diary. This second application under Section 438 Cr.P.C. is filed on behalf of the petitioners. The first bail application No. 150/98 was dismissed on 27.1.1998 so far as the petitioners Himmat Singh and Ranjeet Singh were concerned.
(2.) THE learned Public Prosecutor has submitted that in this case after completion of investigation a report under Section 173 Cr.P.C. has been prepared and filed in the court taking cognizance of the offence. He made available to the court the report prepared by the Station House Officer of the Police Station under Section 173 Cr.P.C. A perusal of the report shows that a challan is intended to be filed against 18 accused persons. So far as the petitioners Himmat Singh and Ranjeet Singh are concerned, it is mentioned in the report that investigation against Himmat Singh and Ajeet Singh will be conducted under Sub -section (8) of the Section 173 Cr.P.C. It is well established that cognizance of the offence under Section 190 Cr.P.C. is of the offence and not of the offender. It is also well established that after taking cognizance of the offence it is for the court taking cognizance to find out who the offenders are and to proceed against them under Section 204 Criminal Procedure Code See Raghuvansh Dubey v. State of Bihar : 1967CriLJ1081 There is no dispute about it that a magistrate competent to take cognizance under Section 190(1)(b) of the Cr.P.C, 1973 can take cognizance on the basis of a report under Section 173 of the Criminal Procedure Code. Whether it is described as a preliminary report or a supplimentary report or a final report.
(3.) THUS , after the submission of the report under Section 173 Cr.P.C. by the Station House Officer of the Police Station, it will be the function of the concerned Judicial magistrate to apply his mind with a view to take cognizance of the offence alleged in the report or constituted by the facts mentioned in the report and further consider whether there are sufficient grounds to proceed against one or more accused persons, including those mentioned in the list of 18 accused persons and there is nothing in law to prevent the magistrate taking cognizance of the offence on police report, in a case like this, from issuing process against the additional accused persons not sent up by the police.;