A Magistrate can summon additional accused not sent up by the police after perusal of statements recorded under Section 161 and other documents referred to in Section 173 of the Criminal Procedure Code.

( 1 ) THIS revisional application was filed by the petitioners Saifar Sheikh and five others for quashing the proceedings against them pending in the Court of Sri R. N. Sarkar, Magistrate, First Class, Suri. The facts are briefly as follows:

( 2 ) ON 26th December 1958 one Sheikh Khoda Newaj lodged a first information report at Nanoor P. S. against 17 persons including the six petitioners, alleging that in the early morning of that day, a bullock belonging to one Sonaullah had damaged gram plants belonging to one Mokshed Sk. , that the bullock had been seized by Haijan Sk. and Ajad for impounding; that Sonaullah asked for the release of the bullock and there was a quarrel, whereupon fifteen or sixteen persons including the six petitioners assaulted Haijan Sk. and Ajad and rescued the bullock. The police after investigation submitted charge-sheet against eight accused persons under Section 147, 324 and 325 of the Indian Penal Code. On the 1st of May 1959, when the Magistrate was to peruse police papers for considering whether a charge or charges should be framed against the persons sent up the informant filed a petition stating that there was a prima facie case against the six petitioners and that the police wrongfully refused to send them up. The learned Magistrate then perused the police papers and heard both sides, and he decided that there was prima facie evidence against the six petitioners also; and so by an order dated 15th July 1959 he summoned these six petitioners under Section 147 of the Indian Penal Code. It is against that order that the petitioners have come up.

( 3 ) MR. Ajit Kumar Dutt appearing for the petitioners has urged that the learned Magistrate had no jurisdiction to summon the petitioners who had not been sent up by the police along with the charge-sheet.

( 4 ) THE learned Magistrate in the course of his order dated 15th July 1959 observed that when a Magistrate takes cognizance under Section 190 (1) (b) of the Criminal Procedure Code on a police report, he takes cognizance of the offence and not merely of the particular persons named in the charge-sheet and, therefore, the Magistrate can issue process against other persons who appear to him on the basis of the report and other materials placed before him to be concerned in the commission of the offence. In the particular case, after perusing the statements under Section 161 of the Criminal Procedure Code, the learned Magistrate observed that more than one witness having named the six persons as concerned in the unlawful assembly which assaulted the men on the side of the informant and rescued the bullock, prima facie there was a good case under Section 147 of the Indian Penal Code against the six petitioners; and so he summoned them. The view taken by the learned Magistrate finds support in the observations made in the case Mehrab v. Emperor, 26 Cri LJ 181: (AIR 1924 Sind 71), which is a Full Bench case of the Judicial Commissioners, Sind. Though the case comes from Sind, the learned Judges of the Full Bench made a lucid exposition of the relevant law, and the case has been quoted as a leading case in B. B. Mitra's Commentary on the Criminal Procedure Code. It was observed in that case as follows :--"under Section 190 of the Criminal Procedure Code, a Magistrate takes cognizance of an offence and not of the offender. . . . The fact that the Police in a report submitted under Section 173 of the Criminal Procedure Code have not mentioned all the parties concerned in the offence which has been sent up for enquiry, does not debar a Magistrate from taking action against persona other than those mentioned in the Police report. Once a Magistrate has taken cognizance of a case and proceeds to deal with the evidence brought before him, it is his duty to see that justice is done with regard to any other person that may be suspected of being concerned in the offence. His action against such persons would fall under Section 190, Clause (b) and not