The Magistrate has the power to summon additional accused under Section 190(1)(b) of the CrPC on the basis of statements recorded under Section 161 and documents filed under Section 173 of the CrPC. Section 319 of the CrPC is not the sole repository of the power to summon additional accused.

( 1 ) AS the reference raises a question pristinely legal, we need not lose much breath on the facts. A brief resume would suffice.

( 2 ) ONE Mohd. Shafi was challaned u/ Ss. 420, 468 and 471 read with S. 34 of the Indian Penal Code. The learned Metropoiitan Magistrate, after taking cognizance u/s. 190 of the Code of Criminal Procedure, supplied copies of statements and documents and on hearing arguments on charge first passed an order summoning Jagdish Sahai Mathur and Prem Narain Goel as co-accused u/s. 190 (1) (c) of the Code and thereafter framed charges not only against Mohd. Shafi but also against Jagdish Sahai Mathur and Prem Narain. Needless to say, the newly added co-accused found the orders unpalatable. Consequently, they filed revision petition taking the plea that the order passed u/ S. 190 of the Code was bad as they could be summoned only u/s. 319 of the Code after the recording of evidence. Of course, they also took the plea that there being no prima facie case the charges could not be framed against them. The revision petition came before Y. K. Sabharwal, J. He found that whereas in D. K. Razdan v. State (1987 Chandigarh Criminal Cases, 173), Braham Singh v. State (Crl. R. 37/87 decided on 9/04/1987) and Baldev Kumar v. State (1987 (3) Crimes 645), it had been held that recording of evidence was a pre-requisite to the summoning of an additional accused, in Subhash Chander v. State (1989 (3) Delhi Lawyer, 159) : 1990 Cri LJ 1217, it had been held that a Sessions Judge could summon an additional accused on the basis of the statements recorded u/s. 161 of the Code and the documents filed alongwith the report u/s. 173 of the Code. Faced with this situation Sabharwal, J. made reference giving rise to this order.

( 3 ) COULD the petitioners be summoned to stand the trial independently of S. 319 of the Code? This is the question which has necessitated the reference and which now stares at us and craves for an answer.

( 4 ) AS per Mr. Dinesh Mathur, Senior Advocate appearing for the petitioners, the Magistrate can take cognizance u/s. 190 of the Code only against the person already arrayed as an accused and it is only on the recording of evidence during an inquiry or a trial (as the case may be) that the power to summon others as accused springs out from the fountain head of S. 319 of the Code. In support he had in this armoury not only the above-noted single bench judgments of our own High Court, namely D. K. Razdan v. State, Braham Singh v. State and Baldev Kumar v. State (supra), but also a single bench judgment coming from the Punjab and Haryana High Court namely Mithlesh Kumari v. State of Haryana (1988 Ch C Cases 554) : 1989 Cri LJ (NOC) 12 which undoubtedly, stand by him, firmly and squarely.

( 5 ) IS S. 319 of the Code, the sole repository of the power? Let us proceed to examine.

( 6 ) THE language of S. 190 of the Code is loaded with significance. It talks of cognizance and that too of the offence end not the offender . The Magistrate first takes cognizance of the offence and thereafter only proceeds to find out who the offenders are. The steps though appear to be intertwined are distinct. The Supreme Court makes it clear in Raghubans Dubey v. State of Bihar (AIR 1967 SC 1167) : 1967 Cri LJ 1081. Sikri J. speaking for the Bench observed at page SC 1169, AIR 1967 :

"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 persons sent up by the Police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. "

( 7 ) THE view expressed won approval subsequently in Hareram Satpathy v. Tikaram Agarwala (AIR 1978 SC 1568) : 1978 Cri LJ 1687 and Jo