JUDGMENT Narain, J : This application in revision is directed against the order dated the 11 th December, 1970 by which Shri K. P. Sinha Munsif-Magistrate first class, Giridih has put on trial the petitioner, who is a licensee of a liquor shop at Dandidih, on account of the provisions of section 59 of the Bihar and Orissa Excise Act. 2. On the 15th of February, 1970 the Excise Inspector inspected the liquor shop which was in-charge of Mohsin Mian, opposite party No.2 and Usman Gani, opposite party no. 3 was also there. The Excise Inspector suspected that the liquor of 50.0 U. P. strength kept on the gaddi and stored in a drum for sale was omitting smell of denatured spirit which was dangerous for health and prohibited under the rules. He seized the bottles and the drum and prepared a seizure list in presence of witnesses. Mohsin Mian requested him to spare him but when he found that the inspecting authority was not disposed to• oblige him, he instigated the persons who had assembled there to have a drink and they started throwing brickbats. The electric light was also put off and a mob of 30 to 40 persons armed with lathis entered into the shop broke several bottles and took away the sealed drums and the remaining bottles. The matter was reported to the Police who after investigation submitted charge-sheet under sections 147, 353, 336 and 379 of the Indian Penal Code and sections 49 and 54 of the Bihar and Orissa Excise Act against Mohsin Mian and Usman Gani, opposite party Nos. 2 and 3. Cognizance was taken against them and the 'case came for trial to the file of the Munsif-Magistrate Shri K. P. Sinha, before whom a - petition was filed by the Assistant District Prosecutor to summon the petitioner, who was licensee of the liquor shop. The learned Munsif-Magistrate in view of the provisions of section 59 of the Bihar and Orissa Excise Act allowed the prayer and summoned the petitioner. Hence this revision application. 3. Mr. Shivanand Prasad Sinha on behalf of the petitioner has vehemently argued that there were no fresh materials before the transferee Magistrate on the strength of which he could issue processes against the petitioner. Hence this revision application. 3. Mr. Shivanand Prasad Sinha on behalf of the petitioner has vehemently argued that there were no fresh materials before the transferee Magistrate on the strength of which he could issue processes against the petitioner. He has also argued that for application of the provisions of section 59 of the Excise Act prosecution has to prove that the servant 'was acting within the scope of his employment and for the benefit of his master and for the purpose he has relied upon the case of Abdul Gajoor Vs. King Emperor.1 4. It is true that the materials which were before the Sub-divisional Magistrate who took cognizance of the offence, were the same before the trying Magistrate and that no witness had been examined nor any additional paper had been placed before the trying Magistrate before he passed the impugned order. In this connection, however, it would be pertinent to refer to what their Lordships of the Supreme Court have said about the summoning of the additional accused in Raghunath Dubey Vs. State of Bihor.2 They have said that the "summoning of additional accused is part of proceeding initiated by taking cognizance of offence." Their Lordships in the following words also, quoted with approval certain decisions of the Calcutta High Court and the Full Bench decision of the Judicial Commissioner, Sind : Punjab High Court and the Allahabad High Court. "Mr. Sachithey, the learned counsel for the respondent brought to our notice some decisions which have taken the same view. The Calcutta High Court in Saifar Vs. State of West Bengal. A. I. R. 1962 Cal. 133. following the Full Bench decision of the Judicial Commissioners, Sind, in Mehrab Vs. Emperor, A. I. R: 1924 Sind 71. held that when Magistrate takes cognizance under Section 190 (1) (b) on a Police report he takes cognizance of the offence and not merely of the particular persons named in the charge sheet, and, therefore the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the Police under section 161 and the other documents referred to in Section 173 even without examination of witnesses in court. The Punjab High Court in Fatta V. The State A. I. R. 1964 Punjab 351, and the Allahabad High Court in Ali Ullah V. The State, 1963 (2) Cr. The Punjab High Court in Fatta V. The State A. I. R. 1964 Punjab 351, and the Allahabad High Court in Ali Ullah V. The State, 1963 (2) Cr. L. J. 66 (All), also expressed a similar view." 5. The above two observations raise a question whether cognizance taken in the case was in consonance with law and whether materials existed in the Police diary against the petitioner. Section 87 of the Bihar and Orissa Excise Act inter alia says that no Magistrate shall take cognizance of an offence referred to in Sections 47, 49, 55 or 56 except on his own knowledge or suspicion or on the complaint or report of an Excise Officer. In the present case cognizance has been taken on charge-sheet submitted by the Police which is manifestly, nor a report, of the Excise Officer. But bar under Section 87 will not operate since cognizance has been taken of certain offences which relate to the Indian Penal Code and section 54 of the Bihar and Orissa Excise Act which does not find place in section 87. No doubt cognizance has also been taken of section 49 of which mention has been made in section 87 but that is not of any great consequence for the present purpose. Therefore, cognizance taken in the present case is quite in consonance with law. 6. Now as to the materials on which the learned Munsif-Magistrate passed order of issuing summons against the petitioner. The order itself will show that he referred to the first information report and the Police diary and to the provisions of section 59 of the Bihar and Orissa Excise Act.' If on those materials I he found, which I think he rightly found, that the petitioner was also liable for certain offences, his order cannot be called in question. Therefore, even if additional witnesses are not examined before a trying Magistrate, if he, by reference to the Police diary and the first information report and to the provisions of law ummons any additional accused his order must be held to be perfectly legal. 7. So far as the ratio of the case of Abdul Gafoor Vs. King Emperor (supra) is concerned, acts of the present case, in my opinion fulfill the tests. 7. So far as the ratio of the case of Abdul Gafoor Vs. King Emperor (supra) is concerned, acts of the present case, in my opinion fulfill the tests. Sale was being conducted by Mohsin Mian in his capacity as a servant of the petitioner and this was well within the scope of his employment and mixing of denatured spirit was also with a view to bring profit to the master and, therefore, there is nothing to bar the operation of the provisions of section 59. 8. No substance having been found in any of the contentions raised the application is dismissed. Application dismissed.