The Magistrate takes cognizance of an offence and not the offender, and it is his duty to find out who the offenders really are and proceed against them if they are involved in the offence.

A.K. Pathak, J.— (Oral)

1. Petitioners are relatives of husband of complainant-Smt. Chanchal in FIR No. 154/2011 under Sections 498-A/406/34 IPC of Police Station Madhu Vihar. Complainant had named the petitioners in the FIR as the persons who had treated her with cruelty. Case was investigated by the police and thereafter charge-sheet under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was filed. Petitioners were not sent up to face trial. Their names were mentioned in column no. 2 of the charge-sheet.

2. Vide order dated 23rd March, 2012, Metropolitan Magistrate, Delhi, on perusal of charge-sheet and documents annexed therewith took cognizance of the offence and ordered for issuance of summons to the accused.

3. That is how petitioners are before this Court by way of present petition under Section 482 Cr.P.C.

4. Learned counsel for the petitioners has vehemently contended that after completing the investigation, on the basis of material collected during the investigation, Investigating Officer came to the conclusion that no sufficient material had come on record for proceeding against the petitioners, thus, kept them in column no. 2 of the charge-sheet. Accordingly, Metropolitan Magistrate had no jurisdiction to summon the petitioners without disclosing the material or evidence which compelled him to summon the petitioners. Since, petitioners were not sent up to face trial, learned Magistrate could not have summoned them at this stage. He could have summoned the petitioners only under Section 319 Cr.P.C. if any evidence had come against them. At the initial stage Section 319 Cr.P.C. cannot be invoked in the course of any inquiry or trial. He has placed reliance on Anand Sharma vs. State 2003 I AD (Delhi) 38, Raj Kishore Prasad vs. State of Bihar & Anr. (1996) 4 SCC 495 and Ranjit Singh vs. State of Punjab (1998) 7 SCC 149.

5. Relevant it would be refer to Section 190 Cr.P.C. at this stage, which reads as under:-

1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

6. A perusal of above provision makes it clear that Magistrate takes cognizance of offence and not the offender. After taking cognizance of the offence 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 the process should be issued to a particular person named in the charge-sheet and also person not named therein and for this purpose he is required to consider the FIR and the statements recorded by the police officials and other documents filed along with the charge-sheet. The Magistrate is entitled to take cognizance of an offence 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 independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At the stage of taking cognizance Section 319 Cr.P.C. is not attracted.

7. In Raghubans Dubey vs. State of Bihar AIR 1967 (2) SCR 423, Supreme Court has held that “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 th