When a Magistrate takes cognizance of an offence under Section 190 (1) (b) of the Code of Criminal Procedure upon a police report, the procedure to be followed is according to Section 207-A of the Code of Criminal Procedure, even if the accused is not mentioned in the police report.

This is a reference made by the 1st Temporary Civil and Sessions Judge, Bahraich, recommending that the order of the Magistrate for adopting the procedure under Section 207-A of the Code of Criminal Procedure, be quashed and the case should be sent back for being proceeded, with in accordance with the other sections of Chapter 18 of the Code of Criminal Procedure.

2. A dacoity was committed on the night between 7th and 8th of March, 1960 at village Tappasipah at the house of one Ram Lal. Next morning Ram Lal lodged a report in the police station saying that there were 13 or 14 dacoits and that one of the dacoits had been apprehended who had given his name as Chinau. It was further alleged in the report that among the dacoits, one Atiullah alias Tulli had been identified but the other dacoits were not known. The police sent up a charge sheet under Section 190 (1) (b) of the Code of Criminal Procedure against the aforesaid two persons. The Magistrate took cognizance of the offence and conducted the inquiry. During the inquiry two prosecution witnesses, other than Ram Lal, were examined and they stated to have identified Atiullah alias Tulli among the dacoits. The Magistrate, thereupon, summoned Tulli. The question arose whether the procedure to be followed against Tulli should be according to Section 207-A or according to Section 208 of the Code of Criminal Procedure. The Magistrate expressed the view that the Court had taken cognizance of the offence under section 190 (1) (b) and not under clause (c) and the procedure to be adopted in the inquiry proceedings had to be according to the procedure laid down in Section 207-A of the Code of Criminal Procedure.

3. The applicant Atiullah preferred a revision against the aforesaid order of the Magistrate. The Court below was of the view that the only police, report before the Magistrate was the one under Section 173 of the Code of Criminal Procedure and action on that report could only be taken against the person mentioned in the report and it could not be taken against any other person. It, therefore, held that the proceedings against the applicant should not be under Section 207-A of the Code of Criminal Procedure. The Court below was of the view that the proceedings should be in accordance with the other sections of Chapter 18 of the Code of Criminal Procedure. The Court below, therefore, made a reference recommending that the aforesaid order of the Magistrate should be quashed and the procedure as laid down by Section 207-A of the Code of Criminal Procedure should not be followed in the proceedings before the Magistrate. Learned counsel for the applicant has strenuously contended that the view expressed by the Court below is the correct view and that since the applicant had not been mentioned in the report made by the Police before the Magistrate, the procedure to be followed should be the procedure as laid down in Section 208 of the Code of Criminal Procedure. Learned counsel contended that the Magistrate had taken cognizance of the offence under Section 190 (1) (c) upon the information which he had received from the aforesaid two witnesses in the case and it could not be said that he had taken cognizance of the offence on any report made by the police. The contention is that the determining factor is the report against the person made by the police and not the proceedings pending before the Court. He has, therefore, contended that the view expressed by the Court below is correct and, therefore, the reference should be accepted.

4. Learned counsel for the State as also the learned counsel for the complainant contended that the cognizance of the offence had been taken by the Magistrate under section 190 (1) (b) upon the report with regard to the offence made by the police and it was immaterial that proceedings against the applicant were started at a subsequent stage. It was urged that it cannot be said that the Magistrate had taken cognizance of the offence upon any informati