M. NAGAPPA, J. ( 1 ) THIS petition is by one Ayyanagouda, directed against the order dated 7. 5. 1981 passed by the Judicial Magistrate i Class, Sindhanoor, in C. C. No. 824 of 1979 holding that there is a prima facie case made out against him under S. 109 ipc and, taking cognizance under S. 319 Crl. PC against him and issuing n. B. W. to him to appear before him to answer the charges for offences under Ss 341, 323, 324 and 326 read with s. 34 I. P. C. ( 2 ) BRIEF facts of the case are: the Sindhanoor Police filed a charge sheet against Respondents 2 to 4 herein, who are accused 1 to 3 in the Court below, for offences punishable under sections 314, 326, 324 and 323 read with S. 109 and 34 of I. P. C. The trial against them was proceeded in c. R. No. 824 of 1979. On 7. 5. 1981, p. W. 3 - Shivangouda - was examined and it appears that he deposed that the accused parsons, Respondents 2 to 4 herein, were instigated by one Ayyanagouda, the petitioner herein, for causing injury to P. W. 2-Mudukappa. The learned Magistrate, after perusing the evidence of P. Ws. 1 and 2 coupled with the evidence of P. W. 3, came to the conclusion that a prim a facie case has been made out against the petitioner undr S. 109 I. P. C. and, therefore, suspended the trial and took cognizance of the offence under S 319 Cr. P. C. as against the petitioner and ordered. issue of N. B. W. as aforesaid. It is the legality and correctness of the said order that is challenged by the petitioner in this petition. ( 3 ) SRI B. S. Raikote, learned counsel for the petitioner, took this Court through the evidence of P. Ws. 1 and 2 and also the evidence of P. W. 3 recorded in the case and submitted that the view taken by the learned Magistrate cannot be justified in view of the fact that P. W. 2, the injured, himself does not say that the said Ayyanagouda is the person who instigated the other accused to commit the aforesaid offences. 1 and 2 and also the evidence of P. W. 3 recorded in the case and submitted that the view taken by the learned Magistrate cannot be justified in view of the fact that P. W. 2, the injured, himself does not say that the said Ayyanagouda is the person who instigated the other accused to commit the aforesaid offences. If that is so, he contended that the learned Magistrate was not justified in wholly relying upon the evidence of P. W. 3 to come to the conclusion that there is prima facie material to show that the petitioner has instigated the other accused to assault p. W. 2, On the other hand, Sri Kuranga the learned) high Court Government Pleader brought to the notice of this Court and road over that portion of the -evidence of P. W. 3 wherein P. W. 2 told him that the petitioner has Instigated the other accused to assault P. W. 2. If that is so. he contended that 'he view taken by the learned Magistrate is. in accordance with the evidence produced by the prosecution and taking of cognizance under S. 319 Cr. P. C. against the petitioner is well founded and it cannot be interfered with. ( 4 ) IT may be necessary at this staff e to refer to the relevant portions of the evidence of the three witnessi. P. W. 1 Sharanappa - with regard to this aspect of the matter has stated in his examination-in-chief thus: c. W. 2 told that one Ayyanagouda got assaulted him through the accused and he was responsible to breaking his hands and legs. " there is no cross-examination as far as this aspect of the matter is concerned. P. W. 2. the injured, has stated thus:"i told Jambayya that Ayyanagouda has got me assaulted because of election dispute through the accused and he should inform the same in ray house. "p. W. 3 - Shivangouda -has stated in his examination-in-chief thus:"p. W. 2 was lying on the ground. P. W. 1 was giving first aid and P. W. 2 was lying as if he was dead. P. W. 2 was unconscious. P. W. 2 had sustained injuries on his hands legs and; forehead. At that time, one Jambayya of Sindhanoor came to the spot. He is a Doctor. P. W. 1 was giving first aid and P. W. 2 was lying as if he was dead. P. W. 2 was unconscious. P. W. 2 had sustained injuries on his hands legs and; forehead. At that time, one Jambayya of Sindhanoor came to the spot. He is a Doctor. P. W. 2 got consciousness of that time and narrated, the incident to the Doctor Jambayya. , and requested him to convey the matter to his family members. Basamma and Sharnamma the women folk are his family members, came there. When P. W. 2 was poured water he slowly narrated the incidenft stating -that panchayat Chairman Ayyangouda has instigated A-1 to A-3 to do this act. . . There are party enmity between P. W. 2 and panchavath Chairman Ayyangouda. Due to the election dispute he has instigated A-l to A-3 to commit this offence. "relying on the evidence of P. W. 3, the the learned Magistrate passed the impugned order, the legality of which is challenged hi this petition by the petitioner. ( 5 ) IT is significant to note, in this context that P. W. 2, the injured, is the proper and best person to narrate the incident as to who is the actual assailant, as to the motive and other aspects of the case. P. W. 1 is an. eyewitness. He has not stated that Jambayya the doctor came to the spot when P. W. 2 was being assaulted PW 1 stated that Jambayya was casually passing near the spot towards my village and c. W. 2 sent a message to his relatives through him. But, P. W. 2 also says that, after some-time one Jambayya of Sindhanoor came there. He told jambayya that Ayyanagouda has got him assaulted because of ejection dispute, through the accused and he should inform the same in his house. The evidence of P. W. 3 is also to the same effect. But, the said Jambayya was not cited as, a charge-sheet witness in the case. He told jambayya that Ayyanagouda has got him assaulted because of ejection dispute, through the accused and he should inform the same in his house. The evidence of P. W. 3 is also to the same effect. But, the said Jambayya was not cited as, a charge-sheet witness in the case. It appears that the list of witnesses appended to the charge-sheet clearly indicates that Jambayya was not even examined and; his statement was not recorded during the investigation and even assuming that P. W. 2 told jambayya that one Ayyanagouda got him assaulted through the accused, that would not take the case of the prosecution any further and the learned Magistrate could not have acted upon the aforesaid statements of the witnesses for more than one reason,. Firstly, the said Jambayya was not even examined during the investigation Secondly, he was not cited as a witness in the charge-sheeet. If that is so, what value could be attached to the aforesaid statement made by PWs. 1 to 3 that P. W. 2 narrated to the said Jambayya that he was got assaulted by the petitioner and it was the petitioner who instigated the accused to assault him. ( 6 ) IT is no doubt, true that to attract S. 109 I. P. C. it is not required that the instigation should be in a particular form or that it should be only in words and may not be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case, it is also not necessary in law for the proseeuon to prove that the actual operative cause in the mind of the person abetied was instigation and nothing else, so long as there was instigation and the ottence has been commuted or the ofience would have been committed if the person committing the act had the same knowledge and intention as the abettor. It is also well settled that where the accused was nowhere near the scene of occuirenda,, the mere facts that the unlawful assembly consisted mostly of his servants or tenants and that its common object was to do something which was in the interests of the accused, cannot lead to the conclusion that the accused must necessarily have ordered or instigated the formation of this unlawful assembly or the commission of thsi crime. Servants and partisans, not unoften, on their own responsibility, do things which they consider tobe in the interests of their masters or principals without the latter's knowledge or consent. It is further to be seen that apart from the omnibus statements made by the three witnesses including the injured that one Ayyanagouda got him assaulted through the accused due to party feelings, there are absolutely no other materials to justif'y or corroborate the aforesaid statements. If that, is so, the learned Magistrate was not jusiified in acting under 319 Cr. P. C. and issuing N. B. W. against. the petitioner for the alleged abetment. Even the case of the petitioner is that there is absolutely no material placed on record by the " prosecution to warrant such action. If that is so, there is substance in the. contention of Sri. Raikote that the order of the learned Magistrate suffers from illegality and issuing of n. B. W -. against the petitioner for the alleged offence under Section 109 I. P. C. cannot be sustained. ( 7 ) IN the result, this petition is allowed and the impugned order is set aside. The learned Magistrate is directed to proceed with the case and complete the same as expediiiously as possible. --- *** --- .