The magistrate has the power to take cognizance of an offence upon a police report even if the police have not included the accused in the charge-sheet.

1. - This order will deal with S. B, Criminal Miscellaneous Bail Application No. 636 of 1981 and S.B. Criminal Miscellaneous Application No. 136 of 1981. These two applications arise out of case, F.I.R. No. 215 of 1980, State v. Dudhia and Ors. , under Sections 302, 147, 148 and 149,-I.P.C. which was instituted on a police report in the Court of judicial magistrate, Sangod, on December 23, 1980, and is still pending there.

2. The facts, in so far as they are necessary for the disposal of these applications, may be shortly stated here. On November 9, 1980, one Ram Bharose carried in a cart the dead body of Gordhan and another person, Gajanand by name, in an injured condition, to police station, Sangod and gave information (F.I.R. No. 215 of 1980) to the police that Shyam Behari, Bhagwati, Kalu, Chauthmal, Gomta Pratap, Chhitter Kalia, Madan, Shrilal and Bhoga had committed rioting and inflicted fatal blows to Gordhan and grievous hurt to Gajanand earlier that morning. The police registered a case under Sec5. 147, 148, 302-149, 307-149, 326-149 I.P.C. Gajanand also succumbed to his injuries on November 10, 1980. On investigation, the police submitted a charge-sheet against 10 out of the aforementioned 11 accused and 2 others in all 12 accused,. excluding Shyam Behari on the ground that there was not sufficient evidence to justify the submission of a charge-sheet against him. While excluding Shyam Behari, the police included the names of two other persons, namely Dudhia and: Gopal, in the charge-sheet stating that their participation in the commission of the crime had come to light during the investigation. The judicial magistrate Sangod, took cognizance of; the offence under Section 190(1)(b) Cr. P.C. and supplied copies of the police report and other documents to all the 12 accused in accordance with the provisions of Section 207, Cr. P.C. on December 23 1930. By his order dated January 30, 1981, learned judicial magistrate purported to lake cognizance of the offence against Shyam Behari as well on the basis of the aforementioned police report hiking the view that the statements recorded under Section 161 Cr. P.C. and other documents accompanying the said report warranted the taking of such cognizance. The learned magistrate ordered the issue of a warrant for causing Shyam Behari to be brought before him on February 13, 1981.

3. By its order dated April 29, 1031, this Court (Kasliwal J.) ordered Dudhia Gomta, Shrilal, Gopal and Partap to be released on bail. He however rejected by the same order a similar application for bail moved on behalf of Chauthmal, Bhaga, Chhitter Kalu, Madan, Bhagwati and Kalia. These seven persons then moved another application, registered as S. B, Criminal Misc. Bail Application No. 636 of 1981 on June 1, 1981, for bail and they simultaneously challenged their detention as illegal on various grounds which will be adverted to a little later. The said application came up before the vacation Judge (Agrawal J.) on June 23, 1981. He granted interim bail to all the aforementioned seven accused till final decision on their application. That application is now before me for final decision,

4. The other application which is being dealt with along with the application of the aforementioned seven accused is the one made on behalf of Shyam Behari and registered as S, B. Misc. Criminal Application No. 136 of 1981. This application purports to have been made under Section. 482 Cr. P.C. challenging the validity of the order, dated January 30, 198], whereby the Judicial Magistrate took cognizance of the offence against Shyarn Behari notwithstanding the report of the police that there is not sufficient evidence to justify the forwarding of that accused to the magistrate, and further ordered the issue of a warrant of arrest against him.

5. Mr. Tyagi, learned Counsel for the accused petitioners raised the following points in support of the relief prayed in these two applications:

(i) The magistrate has taken cogniz