Order This is a reference under section 438, Criminal Procedure Code, by the learned Sessions Judge, Belgaum, recommending to reverse the order of the learned Judicial Magistrate, First Class, Athni and t6 direct him to issue process to four persons, viz., (i) Pandit Shrimant Patil, (2) Balappa Shrimant Patil, (3) Keshav Shrimant Patil and (4) Kallappa Chougule, to answer a charge of murder and rioting. 2. The facts that have given rise to this reference are these: In respect of an incident that happened on 16th November, 1965 at 2 p.m. in the land belonging to Kallappa Kadappa Desai, called ‘Kamat Hola’, on the complaint of Naravan Rajba Patil, a case was registered in Crime No. 80 of 1965 against 19 persons including the four persons mentioned earlier for offences under sections 147, 148 , 149 and 302 read with section 34, Indian Penal Code. In respect of the same incident, on the complaint of Ramu Annappa Patil, another case was registered in Crime No. 79 of 1965 against 14 persons, including Narayan Rajba Patil for similar offences. After due investigation, charge-sheets were filed in these two cases. In the charge-sheet, the four persons mentioned above were not included as accused persons, but instead some others were included and the final charge-sheet disclosed 21 persons. It is unnecessary to consider the number of persons charge-sheeted in the other case. Crime No. 79 was registered at 4 P.M. whereas Crime No. 80 was registered at 5-30 p.m. by the Sub-Inspector of Police, Athni. In these two cases there were three deaths in all and number of persons on both sides had been injured. At about 9 or 9-30 p. M. the Circle Inspector of Police took up further investigation of these two cases and after due investigation, filed two charge-sheets on 10th January, 1966. 3. On 17th February, 1966, Narayan Rajba Patil filed the present application through his advocate, alleging that the Circle Inspector of Police had not investigated into this case properly and that he had taken sides with the other party with the result he had omitted to include the persons mentioned above in the charge-sheet. He further alleged that he, at the earliest moment, mentioned that names of these persons as persons who also committed the offences along with others and with a view to help them, the Investigating Officer had created false evidence in their favour. He further alleged that he, at the earliest moment, mentioned that names of these persons as persons who also committed the offences along with others and with a view to help them, the Investigating Officer had created false evidence in their favour. He, therefore, prayed that process be issued to these four persons for being tried along with the other accused persons. The four persons appeared through their Advocate and opposed the application on various grounds. The learned Magistrate, after considering the material before him, came to the conclusion that there was no truth in the allegation made by Narayan Rajba Patil, and accordingly dismissed the application. Aggrieved by this decision Narayan Rajba Patil preferred a revision petition in the Court of the Sessions Judge, at Belgaum, who, by his order, referred the matter to this Court. According to the learned Sessions Judge, the order of the learned Magistrate could not be sustained inasmuch as on the material available in the case he should have issued process to the said four persons. 4. Mr. Krishnaswamy Rao, the learned Counsel for Narayan Rajba Patil, in support of the order of reference urged that the learned Magistrate had powers to issue process to the said four persons. He also contended that there was sufficient material on record to hold that these four persons were involved in the commission of the offence along with the other accused persons and the learned Magistrate, without properly assessing the material placed before him, has rejected the application. He therefore, urged that this is a fit case, in the interest of justice, that the Magistrate should be directed to issue process against the four persons. 5. Sub- section (1) of section 190 of the Code’ of Criminal Procedure reads as under: “190 (1): Except as hereinafter provided, any Presidency Magistrate. District Magistrate or Sub Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a) Upon receiving a complaint of facts which constitute such offence. (b) Upon a report in writing of such facts made by any police-officer. (c) Upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.” 6. It is clear from this sub- section that when a Magistrate acts under any of the clauses of this sub-section, he takes cognizance of an offence. (c) Upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.” 6. It is clear from this sub- section that when a Magistrate acts under any of the clauses of this sub-section, he takes cognizance of an offence. The expression “takes cognizance of an offence “cannot be equated to take cognizance of an offender and the normal rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole. As such he gets seized of the whole case and there appears to be no bar to his issuing process against all persons who appear to be involved in the offence. The contention that when a Magistrate takes cognizance under clause (b) of the above sub- section upon a report made by a Police Officer he is restricted to issuing process only to the persons challenged by the police is not warranted by the language of the sub-section. See the decision in Fatta and others v. The State1 7. Generally when a Magistrate has taken cognizance of an offence and proceeds with the trial of the case, it is his duty to proceed to deal with the evidence brought before him and to see that justice is done in regard to any person who might be proved by the evidence to be concerned in that offence. He is entitled to proceed against persons other than those against whom the complaint was filed if they appear to be involved in the offence. The ordinary rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole, and is empowered to summon all persons against whom there appears to be any reason for their prosecution even though their names are not mentioned for this purpose in the petition of complaint. (Vide Sohoni's Code of Criminal Procedure, 15th Edition, page 915.) 8. From the principle stated above, it is clear that the Magistrate can proceed to take action against persons, even though not challenged (?) by the police, if there is evidence that some other persons were involved in the offence. (Vide Sohoni's Code of Criminal Procedure, 15th Edition, page 915.) 8. From the principle stated above, it is clear that the Magistrate can proceed to take action against persons, even though not challenged (?) by the police, if there is evidence that some other persons were involved in the offence. There is no legal impediment in the way of the Magistrate passing an order for summoning such persons even though the police had not challenged (?) In the instant case, although the complaint was made against the four persons, alleging that they along with others, committed murder and rioting, the police after due investigation, omitted these four persons while charge-sheeting the others. Narayan Rajba Patil has stated in his application that the police, with a view to help these persons, have concocted evidence to show that they were not present at the time of the offence and therefore, taking into consideration the earliest complaint made by him, the Court should have proceeded to issue process to these persons. The learned Magistrate, after considering the allegations made in the application and also the material placed by the investigating agency in the case, was of the view that there was no substance in the allegations made by Narayan Rajba Patil that the police had taken sides. He also of the view that there was no material worth considering to hold that these four persons were also involved in the commission of the offence. As a matter, of fact, except making an applications Narayan Rajba Patil did not place any other material before the Magistrate to persuade him to come to the conclusion that these four persons also were involved in the commission of the offence. A persual of the case diary and the relevant papers connected with this case go to show that these four persons were not present at the time of the offence. 9. In cases where allegations are made by aggrieved persons, it is generally not the function of the police to play the role of the Judge and pronounce their verdict on the true or false nature of the allegation. Where the allegations made could be supported by positive evidence, the police are bound to send up the accused for trial. But instances are not wanting where there is a tendency to implicate innocent persons along with the guilty whenever an occasion arises in that respect. Where the allegations made could be supported by positive evidence, the police are bound to send up the accused for trial. But instances are not wanting where there is a tendency to implicate innocent persons along with the guilty whenever an occasion arises in that respect. In such circumstances, the investigating agency must proceed cautiously and try to find out the truth and only proceed to act on the truth. If the investigating agency is put on restraint in this behalf, I have no doubt, the interests, of the public would suffer. It is possible to visualise that on false allegations, if the investigating agency is to act upon, there would be untold misery and innocent persons are likely to be harassed. The investigating agency must exercise its discretion towards the ends of justice and in cases where the allegations are false or insufficient, they should not proceed to involve persons as a matter of course. In this case I am satisfied that the investigating officer, on material placed before him and collected by him, was satisfied that the four persons were falsely involved by Narayan Rajba Patil and therefore, he was correct in omitting these persons while placing the charge-sheet. The learned Magistrate, having taken into consideration all the materials available in the case, was justified in rejecting the application filed by Narayan Rajba Patil. In this view, the reference made by the learned Sessions Judge cannot be accepted and accordingly it is rejected. The papers will be sent back immediately as large number of persons are in jail. S.V.S. ----- Reference rejected.