Judgment Anand Prasad Sinha, J. 1. This application is directed against the order dated 7-1-1983 passed in Nawanagar P. S. Case No. 82 of 1982, G. R. Case No. 805 of 1982, by the learned Additional Chief Judicial Magistrate, Buxar, by which cognizance has been taken against the petitioner of an offence punishable under Section 302/34 of the Indian Penal Code. 2. On the basis of a first information report lodged by one Mt. Monako Devi, a case had been registered in the Nawanagar police station giving rise to Nawanagar P. S. Case No. 82 of 1982 against the petitioner and others, namely, Rajendra Tiwari, Surendra Tiwari, Brahma Tiwari and Srihari Tiwari. After investigation charge-sheet had been submitted in which Rajendra Tiwari, Surendra Tiwari, Hari Tiwari and Brahma Tiwari were mentioned as sent up accused and the petitioners name was in the column of the charge-sheet not being sent up for trial. However, when the matter was placed before the learned Additional Chief Judicial Magistrate, by the impugned order cognizance has been taken of the case, as stated above, and the petitioner has also been put on trial. 3. Mr. Braj Kishore Prasad, learned counsel appearing on behalf of the petitioner, has challenged the impugned order on the ground that when the petitioner had not been sent up as an accused, it was not permissible in law for the learned Magistrate to issue processes against him also and the petitioner could have been made an accused only under the provisions of Section 319 of the Code of Criminal Procedure (hereinafter to be referred to as the Code). 4. In order to appreciate the contention raised on behalf of the petitioner, it is desirable to state the facts involved in this case briefly ? "Informant Monako Devi happened to be the mother of deceased Rampati Tiwari. In between the night of 6th and 7th August, 1982 at about 12, the informant, her son deceased Rampati Tiwari and daughter-in-law Savitri Devi were sleeping in the terrace of the first floor of their house. Rampati Tiwari was inside a thatched roof, which was open from all sides. Other members of the family were sleeping inside the house on the ground floor. In the mid-night she heard some heavy sounds of steps and she got up. Rampati Tiwari was inside a thatched roof, which was open from all sides. Other members of the family were sleeping inside the house on the ground floor. In the mid-night she heard some heavy sounds of steps and she got up. She saw that four persons after scaling over had arrived at the terrace of the first floor whom she identified as being Rajendra Tiwari, Hari Tiwari, Surendra Tiwari, and Brij Mohan Tiwari (petitioner). One Brahma Tiwari was also found who was watching in the lane and was looking around. They were differently armed; Rajendra Tiwari and Surendra Tiwari were having big swords and Hari Tiwari and petitioner Brij Mohan Tiwari were having small swords in their hands. Brahma Tiwari was also having small sword. She could see that Rajendra Tiwari had given a sword blow on the neck of her son Rampati Tiwari, Surendra Tiwari had also given a sword blow. She raised halla that her son was being killed. The daughter-in-law Savitri also shouted that her husband was being killed. Rampati Tiwari managed to stand and raised his two hands toward off further strokes. Rajendra Tiwari gave a sword blow on his right hand. Thus the hand was severed. Surendra again gave a sword blow on the left had causing deep injuries. Thereafter, the four accused persons named above threw Rampati Tiwari down and they repeatedly attacked Rampati Tiwari by swords causing his instantaneous death. All along petitioner Brij Mohan was keeping a watch in the Gali. Thereafter on halla witnesses arrived and they had also seen the assault and the accused persons running away. As a matter of fact, the informant managed to snatch away the sword from Rajendra Tiwari which had been kept by her on the terrace. The motive for the murder was previous enmity. 5. The petitioner had taken a plea of alibi that on the relevant date he was at Calcutta in his office where he worked as Clerk in the office of the Chief Commercial Superintendent, Claims, Eastern Railway. 6. It appears that mainly on the pretext of alibi the petitioner has been shown as not sent up in the charge-sheet, 7. After a careful consideration of the entire facts involved in this case and the submissions put forward on behalf of the petitioner. I find absolutely no merit in the contentions raised. 8. 6. It appears that mainly on the pretext of alibi the petitioner has been shown as not sent up in the charge-sheet, 7. After a careful consideration of the entire facts involved in this case and the submissions put forward on behalf of the petitioner. I find absolutely no merit in the contentions raised. 8. There is no legal bar whatsover for issue of processes against the petitioner also while taking cognizance of the case, even when the petitioners name had not been mentioned in the charge-sheet in the column of sent up accused persons but mentioned only in the column under the head not sent up. 9. Section 173 of the Code is the relevant provision under which the police submits its report on completion of investigation and that is named and called as charge-sheet. Absolutely, there is no indication in relevant provision of law what-so-ever that such report Is conclusive without any exception on the point that the persons named in the charge-sheet, are only to be the accused involved in the case giving rise to the offence for which investigations have been made warranting further action in the shape of trial as contemplated in the Code. 10. The next stage is that of taking cognizance of the case as contemplated under Section 190 of the Code. Section 190 (l)(b) and (c) are relevant for consideration in this case. It reads as follows : "(b) Upon a police report of such facts : (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed." Therefore, the Magistrate empowered to take cognizance may take cognizance upon a police report of such facts which constitute an offence. In other words, cognizance is invariably taken on submission of the charge-sheet which also also contains statements of facts giving rise to an offence involving certain persons having complicity and nexus with the offence. Also the Magistrate having power of taking cognizance may take cognizance upon his own knowledge that such an offence has been committed. 11. In other words, cognizance is invariably taken on submission of the charge-sheet which also also contains statements of facts giving rise to an offence involving certain persons having complicity and nexus with the offence. Also the Magistrate having power of taking cognizance may take cognizance upon his own knowledge that such an offence has been committed. 11. Thus, from the plain readings in between the lines of the aforesaid provision, it is apparent that the power of the Magistrate, empowered to take cognizance, is not limitted, fettered and confined by the opinion of the police officer submitting charge-sheet with regard to the persons against whom after cognizance processes are to be issued ; rather the power of such Magistrate is purely dependent upon his judicial discretion on consideration of facts giving rise to offence involved in that particular case, which is under consideration both for taking cognizance of the offence and issue of processes in the manner as to who are to be made an accused in the case. 12. While passing the impugned order, the learned Magistrate has looked into the first information report, charge-sheet and the case diary and thereafter, due consideration of all the facts and circumstances and proper application of judicial mind has decided to take cognizance of the offence against the petitioner also and that being so, in view of the discussions made above with regard to the relevant provisions of law, there does not appear to be any illegality what- so-ever. A decision of the Supreme Court in the case of Hareram Satpathy V/s. Tikaram Agarwala, ( AIR 1978 SC 1568 ) has concluded this aspect of the power of the Magistrate empowered to take cognizance in similar facts involved in the instant case. It has been held as follows : "Where the Magistrate after taking cognizance of offence and perusal of the record and having been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police report, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under the law". 13. The next I consider as to how far the power of the Magistrate for taking cognizance, in the facts and circumstances of the case, is either limited or prohibited under the provisions of Section 319 of the Code. 13. The next I consider as to how far the power of the Magistrate for taking cognizance, in the facts and circumstances of the case, is either limited or prohibited under the provisions of Section 319 of the Code. Section 319 (1) of the Code reads as follows : "Where in course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed." 14. From perusal of this provision of law, certain sharp distinctions are apparent and which may be indicated as follows : (a) In course of any inquiry into or trial of an offence ; (b) it appears from the evidence : (c) any person not being the accused has committed any offence ; (d) the Court may proceed against such person for the offence which he appears to have committed. 15. Therefore, in order to attract the provisions of Section 319 of the Code there ought to be an inquiry or trial. There also be a stage of evidence. Moreover, the ambit of Section 319 of the Code is wide enough to include any person even un connected apparently with the offence so far but indicated to have been connected when the evidence is unfolded. 16. It may be appreciated that the provision of taking cognizance as laid down under Section 190 of the Code is definitely quite independent of Section 319 of the Code when considered, of the stage at which the question of taking cognizance and to proceed against the accused persons arise. That being so, Section 190 of the Code can neither be influenced or be subject to the provisions of Section 319 of the Code. 17. In the result, I do not find any merit in this application which fails and is dismissed.