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Judgment
Singh, J.—Heard learned counsel for the part at length.
Perusal of the file reveals that on FIR No. 135/85 was lodged at Police Station, Sojat on 7.7.85 for offences u/s 147, 448 & 373 IPC against Surya Prakash and his sons Sarva Shri Manoj, Bal Kishan, Kamlesh, Virendra and daughter Sarla. After investigation, the SHO filed challan only against Surya Prakash, Kamlesh and Bal Kishan. A complaint u/s 200 Cr.P.C. was filed in the Court below on 29.7.85 in which, after recording evidence u/s 200 & 300 Cr.P.C. cognizance was taken against Surya Prakash, Manoj Kumar and Virendra Kumar for offences u/s 448 & 373 1PC only.
Learned counsel has assailed order dated 18.4.90 of the court below, by which cognizance was taken on the complaint submissions of the learned counsel are that once Police has admitted challan and order once cognizance has been taken on the Police report against remaining accused persons cognizance cannot be taken by the trial Court unless and until evidence of some of the prosecution witnesses has been recorded. Learned counsel has relied upon Smt. Lalita v. State (1); Raj Kishore v. State of Bihar and Anr. (2) and Ursahirn Khan v. State and Anr. (3).
1 have carefully considered these pronouncements. The factual and legal aspects involved therein were not identical to the matter at hand off late. Apex Court in Swill Ltd. v. State of Delhi (4), in similar situation, has held that exercise of powers by the Magistrate u/s 190(1)(b) Cr.P.C., taking of cognizance against one of the accused persons whom in Column No. 2 of the report filed u/s 173 Cr.P.C., is permissible because the Magistrate takes cognizance of the offence and not of the offender. Even if a person will not sent for trial, Magistrate may apply his mind and issue process to such person and later on Section 319 Cr.P.C. has no application in the above situation.
This being latest pronouncement of the Apex Court and applicable in the matter at hand, the ratio is squarely applicable in the present case because here also, Police submitted charge-sheet against the accused persons on the court below taking cognizance u/s 190(1)(b) Cr.P.C. against removing two persons about whom final report has been submitted by the SHO, without recording any statement of the prosecution witnesses. The accused so left by the Investigating Officer can be summoned u/s 190(1)(b) Cr.P.C. Therefore, there is no illegality, much less irregularity in summoning of these accused persons petitioners herein.
No other plea was raised at the Bar.
Therefore, without expressing any grievous regarding merits of the case, at this stage, 1 do not feel inclined to exercise interest powers u/s 482 Cr.P.C. in this case petition is Consequently dismissed.