JUDGMENT 1. 1. The facts leading to this reference by the learned Single Judge, are that on Mar. 16. 87, Pooran Singh lodged a First Information Report (FIR), at PS - Deeg, mentioning therein that at about 2.30 AM on that day, Bachu Singh was returning to his house, after participating in 'Holi' Festival. In the way, he was belaboured by Devi singh, Banni, Bhuri Singh and Girraj Singh. Devi Singh inflicted injury on the right side of the body of Bachu Singh, by a 'Ballam" as a result of which, the latter died at the spot. On the basis of this FIR, the Officer-in-Charge of PS - Deeg, registered a case under section 302/34, IPC and started investigation. On Sept. 17, 87, the Officer-in-Charge of PS - Deeg, filed a charge-sheet under section 173 of the Code of Criminal Procedure, in the Court of Additional Chief judicial Magistrate (ACJM), Deeg, in respect of offence under section 302/34, IPC, as against Girraj Singh, Bhuri Singh and Banni alias Badan Singh. However no charge-sheet was filed as against Devi Singh, who alleged to have inflicted injury by 'Ballam' on the body of Bachu Singh (deceased). On Sept. 17, 86 itself, the first Informant, Pooran Singh, made an application before the ACJM, Deeg, stating that the police in collusion with the accused persons, had not charge-sheeted Devi Singh. It was prayed that Devi Singh be also added as accused in the case and warrant of arrest be issued against him. The ACJM, Deeg after hearing Pooran Singh and after perusing the FIR and the statements of the persons supposed to be acquainted with the facts and circumstances of the case, recorded under section 161, Cr. PC, and the other documents, ordered to proceed against Devi Singh also, and by his order dated Sept 19, 1987, directed issued of warrant of arrest against Devi Singh. Against this order, Devi Singh filed Criminal Revision Petition No. 195 of 1987, which was dismissed by the Addl. Sessions Judge, Deeg on Sept 70. 87. It appears that it was contended on behalf of Devi Singh that the ACJM had no jurisdiction and competence to issue process against him, and that it was only the Sessions Court, which could add him as an accused, in pursuance of the provisions contained in S. 319 of the Code of Criminal Procedure. 2. 87. It appears that it was contended on behalf of Devi Singh that the ACJM had no jurisdiction and competence to issue process against him, and that it was only the Sessions Court, which could add him as an accused, in pursuance of the provisions contained in S. 319 of the Code of Criminal Procedure. 2. Devi Singh, thereafter, filed Criminal Miscellaneous Petition No. 991/89. under section 482, Cr. PC, before this Court, urging therein that the police, after thorough investigation had concluded that petitioner Devi Singh was not involved in the case, and therefore, did not charge-sheet him, and that before proceeding against petitioner Devi Singh, it was incumbent upon the courts below, to hold an inquiry. It was pleaded that the scope and ambit of S. 319, Cr. PC, was not properly appreciated. This petition came up before one of us (Hon'ble Justice (Mrs.) Mohini Kapur), and reliance was placed on behalf of the petitioner, on a decision of this Court in Hari Mohan v. State of Rajasthan, 1987 RLW 356 , in which, relying upon the decision of their Lordships of the Supreme Court in Sanjay Gandhi v. Union of India, AIR 1978 SC 514 , it was held that under section 319 of the Code, the Magistrate is a Judicial Magistrate, and he was only to see whether the offence was triable exclusively by the Court of Sessions and if he finds it to be so, he has to be so, he has to commit the case to the Court of Session. It was also held that where some more accused persons are to be found involved in the case, then, the power to proceed against such accused persons, is with the Court of Session, under section 319, Cr. PC. However, the learned ingle Judge noticed the Full-Bench decision of this Court in Dilip Singh and others v. The State of Rajasthan, 1988 (2) RLR 207 , in which, it was held by the Full Bench that S 319 of the Code of Criminal Procedure, was applicable to all courts and was not restricted to the Court of Sessions. PC. However, the learned ingle Judge noticed the Full-Bench decision of this Court in Dilip Singh and others v. The State of Rajasthan, 1988 (2) RLR 207 , in which, it was held by the Full Bench that S 319 of the Code of Criminal Procedure, was applicable to all courts and was not restricted to the Court of Sessions. It was held in that case, according to the learned Single Judge, that at the time of commitment of the case, the Magistrate has to hold an inquiry (which does not mean recording of evidence), to find out whether the offence is triable exclusively by the court of Sessions. A reference was also made to the decision in Swaroop Singh v. State of Rajasthan etc., 1976 WLN 167 that this proceeding to find out whether the offence was triable exclusively by the Court of Sessions, was an inquiry. The learned Single Judge was of the view that in view of the Full Bench decision in Dilip Singh's case (supra), the view taken by the learned Single Judge in Hari Mohan's case (supra), requited reconsideration. The learned Single judge, therefore, formulated the following question of law, for being considered by a larger bench:- "Whether a Magistrate can take cognizance against a person, not shown as accused by the police, in a case triable exclusively by a Court of Sessions at the time of taking cognizance of an offence or at any time subsequent to it,before committing the case to the Court of Sessions," That is how, this reference has come up for consideration and answer before this Bench. 3. The learned Single Judge (Mrs. Mohini Kapur, J.) making this reference, was of the opinion that in view of the Full Bench decision of this Court in Dalip Singh and others v. State of Rajasthan (supra), the view taken by the learned Single Judge (N.M. Kasliwal, J., as he then was), in Hari Mohan v. State of Rajasthan (supra), required re-consideration. As a matter of fact the precise legal points involved in Hari Mohan's case (supra) and Dalip Singh's case (supra) were not exactly the same, though, in both of them, the provision contained in section 319(1) of the Code of Criminal Procedure, 1973 (for short, hereinafter, "the Code") came up for consideration and interpretation. As a matter of fact the precise legal points involved in Hari Mohan's case (supra) and Dalip Singh's case (supra) were not exactly the same, though, in both of them, the provision contained in section 319(1) of the Code of Criminal Procedure, 1973 (for short, hereinafter, "the Code") came up for consideration and interpretation. In Hari Mohan's case (supra), the point for consideration was whether, in a case triable exclusively by the Court of Sessions, a Magistrate can taken cagnizance against a person not shown as accused by the police in its report under section 173 of the Code, at the time of taking cognizance of the offence or at any other time subsequent to it, but before committing the case to the Court of Sessions under section 209 of the Code. The facts in Hari Mohan's case (supra) were that a charge-sheet was filed by the police under sections 147, 149, 302 and 427, IPC, against 22 accused persons. The petitioners, namely, Hari Mohan, Rameshwar and Venkateshwar Prasad were not named in the charge-sheet. The Judicial Magistrate took the view that the three petitioners were wrongly left by the police, even though their names mentioned by the witness in their statements recorded under section 161 of the Code. The Judicial Magistrate took cognizance against the three petitioners and committed the case for trial to the Court of Sessions, and the three petitioners were forwarded for trial, along with the other 22 charge-sheeted accused persons. It was urged before this Court on behalf of the petitioners that the Judicial Magistrate, Sangod had no power to take any cognizance and to commit for trial the petitioners, against whom, no challan was field by the police. It was contended that under section 209 of the Judicial Magistrate had no power to make any inquiry and he was only competent to commit such accused for trial to the Sessions Court against whom challan was filed by the police. His Lordship N.M. Kasliwal, J., taking support from the observations of their Lordships of the Supreme Court in Sanjay Gandhi v. Union of India, AIR 1978 SC 514 . His Lordship N.M. Kasliwal, J., taking support from the observations of their Lordships of the Supreme Court in Sanjay Gandhi v. Union of India, AIR 1978 SC 514 . held ; - "In the scheme of the procedure for commitment to the Court of Sessions as provided under the Code of Criminal Procedure, 1973, there is no power to Magistrate to make any inquiry in a case instituted on police report, where the offence is triable exclusively by the Court of Sessions. In a case instituted on a complaint, of course, the Magistrate is competent to make an inquiry during the committal proceedings. Now, in a situation where some more accused persons found involved in a sessions case, then, the power to proceed against such accused person lies under section 319, Cr.PC to the Court of Sessions. Under section 319, where, in the 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. The Magistrate has taken cognizance in the present case merely on the basis of the statements recorded by the police under section 161, Cr.PC... ... In a case, which is instituted on a police report, the Magistrate under section 209, Cr.PC had no jurisdiction to take cognizance and commit such accused persons also whose name did not appear in the charge-sheet." 4. In Dalip Singh's case (supra), the case had already stood committed to the Court of Sessions and the accused persons therein had been charge-sheeted for the offences under sections 447, 364, 302 & 302 read with section 341, IPC, by the sessions Judge, Ganganagar. An application had been made under section 319 of the Code, before the Sessions Judge, praying for taking cognizance against six other persons alleged to have been named in the dying-declaration of Kalwant Singh. The Sessions Judge, Ganganagar. following the principle enunciated in the Division Bench decision of this Court in the case of Sheo Ram Singh v. State of Raj, 1982 Cr.LR (Raj.) 637 . The Sessions Judge, Ganganagar. following the principle enunciated in the Division Bench decision of this Court in the case of Sheo Ram Singh v. State of Raj, 1982 Cr.LR (Raj.) 637 . rejected the prayer on the ground that the word "evidence" occurring in section 319 of the Code, means the evidence recorded by the court during the course of inquiry into or trial of the case and not the statements recorded by the police or the documents filed along with the charge-sheet. The petitioners came before the High Court under section 482, Cr. PC. Before this Court, the correctness of the view taken in Sheo Ram Singh's case (supra) was seriously assailed and it was requested that the petition be referred to a Larger Bench of this Court for reconsideration of the view taken by the Division Bench in that case. In Sheo Ram Singh's case (supra), the Division Bench discussed about the power of the Sessions Court to take cognizance against persons not arrayed as accused in the charge-sheet or the committal order, and in that connection, construed the meaning to the attached to the terms "inquiry into and trial of", finding place in section 319 of the Code, and held as under:- "The term "evidence" as used in section 319, Cr.PC means the statements of witnesses recorded before the court during an inquiry or trial and does not include the statements recorded by the police under section 161, Cr PC, or the statements recorded at the instance of the police by the Magistrate under section 164, Cr.PC and the statements recorded by the Magistrate under section 202(2), Cr.PC and the papers submitted by the police in the from of any other documents, simpliciter." 5. The Full Bench in Dalip Singh's case (supra) held as under:- "(1) In between the Sessions Court takin cognizance of the offence after committal of the case and the framing of charge, there is the stage of inquiry and the power under section 319(1), can be invoked even prior to the court proceeding under section 228 of the Code, (2) In Sheo Ram Singh's case (supra), the learned Judges were of the view that the term "evidence" in section 226 is different from the term evidence used in section 319(1). That would be a narrow interpretation not in consonance with the definition of the term "evidence" given in section 3 of the Indian Evidence Act. The statements recorded under section 202(2) and under section 164, from part of the record submitted to the Court of Sessions Judge when the case is committed to it, and there is no reason why that material would not be evidence by virtue of clause (2) of section 3 of the Indian Evidence Act. Section 319 does not impose any restriction for the exercise of power by the court under that section during the course of trial only. It rather empowers it to proceed under that provision even during the course of any inquiry into the matter. Sections 226, 227 & 228 of the Code relates to the inquiry stage before the Sessions Court. The Full Bench disagreed with the view taken by the Division Bench in Sheoram Singh's case that without there being any statement recorded by the court, the Sessions Judge has no power to proceed against a person not an accused in the committal order. The meaning of the term "evidence" appearing in section 309, should be construed as it is ordinarily done and should not be narrowly construed so as to mean only statements recorded before the court." 6. It is quite clear that in Full Bench case of Dalip Singh, the question for consideration was not with regard to the power of the Magistrate to take cognizance or issue process against a person not shown accused by the police in its report under section 1/3 of the Code, in a case triable exclusively by the Court of Sessions, at the time of taking cognizance of the offence or at any other time subsequent it, but, before committing the case to the Court of session under section 209 of the Code as was the question involved in Hari Mohan's case (supra) and as is involved in the present case under reference. 7. We, therefore, proceed to consider the question involved in the present case and also to examine the correctness of the view taken by the learned Single Judge in Hari Mohan's case (supra).Generally : To start with, we may briefly refer to some provisions contained in Chapters XII, XIV, XV & XVI of the Code. 7. We, therefore, proceed to consider the question involved in the present case and also to examine the correctness of the view taken by the learned Single Judge in Hari Mohan's case (supra).Generally : To start with, we may briefly refer to some provisions contained in Chapters XII, XIV, XV & XVI of the Code. Chapter XII deals with information to the police relating to the commission of an offence and their powers to investigate the same. Section 154 of the Code inter alia provides that every information relating to the commission of a cognizable offence, if given orally to an Officer-in-Charge of a police station, shall be reduced to writing by him or under his direction and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving in it, and the substance thereof shall be entered in a book to be kept by such officer. So far as a non-cognizable case is concerned, no police officer shall investigate without the order of a Magistrate, having power to try such a case or commit the case for trial. Any Officer-in-Charge of a police station may, without the order of a Magistrate, investigate any cognizable case & any Magistrate empowered under section. 190, can also order such investigation. Section 169 of the Code provides that if, upon an investigation under Chapter XII, it appears to the Officer-in-Charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall, if such person is in custody release him on his executing a bond, with or without sureties, as such Officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. On the other hand, if, upon investigation, it appears to the Officer-in-Charge of the police station that there is sufficient or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial. 8. Section 173 of the Code provides for report of police officer on completion of investigation. 8. Section 173 of the Code provides for report of police officer on completion of investigation. Its sub-section (2) provides that as soon as investigation is completed, the Officer-in-Charge of the police station, shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and, if so, by whom' when the accused has been arrested, whether he has been released on his bond and if so, whether with or without sureties and whether he has been forwarded in custody under section. 170. The Officer-in-Charge of the police station has also to communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Subsection (5) of s. 173 of the Code provides that when such report is in respect of a case to which s. 170 applies, the police officer shall forward to the Magistrate, along with the report - (a) all documents or relevant extracts on which the prosecution proposes to rely, other than those already sent to the Magistrate during investigation; and (b) the statements recorded under section. 161, of all the persons whom the prosecution proposes to examine as its witnesses. 9. Chapter XIV of the Code has its heading "Conditions requisite for initiation of proceedings" in a criminal case. Section 190 of the Code provides that subject to the other provisions of Chapter XIV, any Magistrate of the First Class and any Magistrate of the Second Class, specially empowered in this behalf under sub-section (2) may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence: (b) upon a police report of such facts; or (c) upon information received from any person other than a police officer or upon his own knowledge, that such offence his been committed. Section 193 provides that except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction, unless the case has been committed to it by a Magistrate under the Code. 10. Chapter XV deals with complaints to Magistrates. A Magistrate taking cognizance of an offence on complaint has to examine upon Oath the complainant and the witnesses present, if only subject to the proviso to the section. Any Magistrate, on receipt of a complaint may, if he thinks fit postpone the issue of process against the accused and either inquire into the' case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding. However, no such direction for investigation by a police officer shall be made where it appears to the Magistrate that the offence complained of, is triable exclusively by the Court of Session. 11. Chapter XVI of the Code deals with commencement of proceedings by the Magistrates S. 204 of the Code inter alia provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be a warrant case, he may issue a warrant, or if he thinks fit, a summon; for causing the accused to be brought or to appear at a certain time, before such Magistrate. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay, furnish to the accused, free of cost, a copy of the police report, the first information report recorded under section 154, the statements recorded under sub-section (3) of section 161, of all persons whom the prosecution proposes to examine as its witnesses, the confessions and statements, if any, recorded under section 164 and any other document forwarded to the Magistrate, with the police report. Section 209 of the code provides that when in a case instituted on a police report or otherwise, the accused appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit, after complying with the provisions of see. Section 209 of the code provides that when in a case instituted on a police report or otherwise, the accused appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit, after complying with the provisions of see. 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of the Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of the Code relating to bail, remand the accused to custody during and until the conclusion of the trial, send to that court, the record of the case and the documents and articles, if any, which are to be produced in evidence and notify the Public Prosecutor, of the commitment of the case to the Court of Session. 12. Then in Chapter XXIV, containing the heading "General provisions as to Inquiries and trials", there is section 319(1) in the Code, providing that where in the 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 be appears to have committed. Sub-section (4) of S. 319, provides:- "(4) Where the court proceeds against may person under Subsection (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." Taking cognizance : Das Gupta, J. in Superintendent & Remembrancer of Legal Affairs, West Bangal v. Ahani Kumar, AIR 1950 Cal. 437 said:- "What is taking cognizance, has not been defined in the Cr.PC, & I have no desire to attempt to define it. 437 said:- "What is taking cognizance, has not been defined in the Cr.PC, & I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Cr.PC be must not only have applied his mind to the contents of the petition, but, he must have done so for the purpose of proceeding in a particular way, as indicated in subsequent provisions of this Chapter, proceedings under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g,, ordering investigation under section 156(3) or issuing of search-warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence." 13. The above observations in Superintendent & Remembrancer of Legal Affairs v. Abani Kumar (supra) were held to have the correct approach to the question in R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207 Per Kania, C.J. The decision in R.R. Chari (supra), was followed in Narayandas Bhagwandas v. State of West Bengal, AIR 1959 SC 1118 . 14. Here it would be useful to refer the decision in Raghubans Dube v. State of Bihar, AIR 1967 SC 1167 . Facts in Raghubans Dube's case (supra) were that one of the 15 persons mentioned as assailants in the First Information Report, dated July 29, 1919, lodged by one Rajaram Shah included the name of Raghubans Dube. The police investigated the case and accepted the plea of alibi, set up before it by Raghubans Dube and not include his name as an accused in the final report under section 173, Cr.PC. His name was, however, mentioned in Column No. 2 of the charge-sheet under the heading "not sent up". Upon this, the Sub-Divisional Magistrate transferred the case to Magistrate, for inquiry with an order that Raghubans Dube who bad not been sent up for trial, is discharged. On transfer of the case, the Magistrate took up the hearing of the case on May 2, 1961. In the meantime, a petition had been filed on April 11, l96l that Raghubans Dube be summoned by the Magistrate. On transfer of the case, the Magistrate took up the hearing of the case on May 2, 1961. In the meantime, a petition had been filed on April 11, l96l that Raghubans Dube be summoned by the Magistrate. On May 2, 1961, Jagannath Sao PW 1 was examined and in his examination-in-chief, he impleaded the appellant, Raghubans Dube as one of the persons who were present in the mob which was alleged to have killed Rupan Singh. On the same day, Mahesh Sao PW 2 also impleaded Raghubans Dube in his examination-in-chief. Counsel for the first informant, Raja Ram Shah, requested the Magistrate to summon Raghubans Dube also for trial as had been prayed by Raghubans Dube in his application dated April 11, 1961. The Magistrate, after hearing the matter, added Raghubans Dube also in the inquiry as accused. Raghubans Dube challenged the order before the Sessions Judge, but, the Sessions Judge rejected his contention and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the case. Raghubans Dube filed a revision before the High Court which was dismissed. The appellant, Raghubans Dube, came to Supreme Court by special leave. One of the contentions advanced before the Supreme Court that the proper procedure to be observed on the facts of the case was not under section 207-A of the Old Cr.PC, but, under the subsequent sections in Chapter XVIII of the Cr.PC. The Supreme Court, rejecting the contention, observed ; "Once cognizance has been taken by the Magistrate, he had taken cognizance of an offence, not the offender. Once the Magistrate takes cognizance of an offence, it is his duty to find out who the offenders really were and once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is a part of proceeding initiating by his taking cognizance of an offence." (emphasis added) Their Lordships referred with approval the decision of the Calcutta High Court in Saifer v. State of West Bengal, AIR 1962 Cal. 133 following the Full Bench decision of the Judicial Commissioners. Sind in Mehrab v. Emperor, AIR 1924 Sind 71 and that of the Allahabad High Court in Aliullah v. State, 1963 (2) Cr. LJ 66 . 133 following the Full Bench decision of the Judicial Commissioners. Sind in Mehrab v. Emperor, AIR 1924 Sind 71 and that of the Allahabad High Court in Aliullah v. State, 1963 (2) Cr. LJ 66 . This Court also followed these decisions in Chouthmal v. State of Raj., 1982 RLW 265 Per K S Sidhu, J). One of us (NC. Sharma J ) held the same view in Udai Singh v. State of Raj., 1987 RLW 224 . The decision in Raghubans Dube v. State of Bihar (supra) was also relied upon by the Supreme Court iu Joginder Singh Anr. v. State of Punjab & Anr., AIR 1979 SC 339 . 15. In Hareram Satpathy v. Tikaram Agarwala & Ors., AIR 1978 SC 1568 , Jaswant Singh, J., observed:- "From the foregoing it is crystal clear that under Section 190 of the Code of Criminal Procedure, the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizanee of the offence. In the instant case, the Sub-Divisional Magistrate took cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not, in our judgment, exceed the power vested in him under law." Magistrate's power to direct the police to file charge-sheet or to disagree with the final report submitted by police. 16. On this point, reference may be made to the decision in Abhinandan Jha & Ors. v. Dinesh Mishra, AIR 1968 SC 117 wherein Vaidialingam, J., speaking tor the Court, observed:- "Though It may be that a report submitted by the police may have to be dealt with judicially by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed according to law. The use of the words "may take cognizance of any offence" in sub-Section (10) of section 190, in our opinion, imports the exercise of a `judicial discretion', and the Magistrate, who receives the report, under Section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this, it follows that it is not as if, that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take that there is not sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty what so ever is caused, because, he will have full jurisdiction to take cognizance of the offence under Section 190(1)(b) of the Code. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated is called in the area in question, as a "final report" ? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, an a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have sample jurisdiction to give directions to the police under Section 156(3) to make a proper investigation. If ultimately, the Magistrate forms the opinion that the facts set out in the final report, constitute an offence, he can take cognizance of the offence under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under these circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the the opinion of the police, to take cognizance under Section 190(1)(c) of the Code. That provision in our opinion is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute or the police, either wary only or through bona fide error, fail to submit a report, setting out the facts constituting the offence..........It is open to the Magistrate to take cognizance of the offence under Section 190(1)(c), on the ground that, after having due regard to the final report, and the police records placed before him, he has reason to suspect that an offence has been committed. The functions of the Magistrate and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view." 17. In H.S. Bains v. The (Union Territory of Chandigarh), AIR 1980 SC 1883 , O. Chinnappa Reddy, J., dealing with the question, stated:- "On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight way issue process. This be may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. This be may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further." With reference to the decision in Abhinandan Jha's case (supra), the learned Judge observed- "We do not have any doubt that the reference to Section 190 (1)(c) was a mistake for Section 190(1)(b)." The decisions in Abhinandan Jha's case and H.S. Bains case (both supra), were followed by the Supreme Court in a recent decision in M/s India Carat Pvt. Ltd. v. State of Karnataka & Anr., AIR 1989 SC 885 , wherein, Natarajan, J., speaking for the Court, observed at page 890 (para 16):- "The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2), a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(i)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused." First informant to be given an opportunity to attack the police report and pray for taking cognizance and proceeding even against a person not charge-sheeted by the police. 18. On this point, there is the decision of their Lordships of the Supreme Court in Bhagwati Singh v. Commissioner of India, AIR 1985 SC 1285 . 18. On this point, there is the decision of their Lordships of the Supreme Court in Bhagwati Singh v. Commissioner of India, AIR 1985 SC 1285 . Bhagwati, J., speaking for the Court, observed in this connection : "It will be seen from the provisions to which we have referred in the proceeding paragraph that when an informant lodges the First Information Report with the Officer-in-Charge of a police station, he does not fade away with the lodging of the First Information Report. He is very much concerned with what action is initiated by the Officer-in-Charge of the police station on the basis of the First Information Report lodged by him. No sooner he lodges the First Information Report, a copy of it has to be supplied to him, free of cost under sub-section (2) of Section 154. If, notwithstanding the First Information. Report, the Officer-in-Charge of a police stations decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-Section (2) of Section 157 to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. Then again the Officer-in-Charge of a police station is obligated under sub-Section (2)(ii) of Section 173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under sub-Section (2)(i), has therefore, to be supplied by him to the informant. The question immediately arises as to why action taken by the Officer-in-Charge of a police station on the First Information Report is required to be communicated and the report forwarded to the Magistrate under sub-Section (2)(i) of Section 173 required to be supplied to the informant. Obviously, the reason is that the informant who sets the machinery of investigation into motion by filling the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report................ Now, when the report forwarded by the Officer-in-Charge of a police station to the Magistrate under sub-Section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. Now, when the report forwarded by the Officer-in-Charge of a police station to the Magistrate under sub-Section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things ; (1) he may accept the report and take cognizance of the offence and issue process; or (2) he may disagree with the report and drop the proceedings: or (3) he may direct further investigation under sub-Section (3) of Section 156 and require the police to make a further report. The report may, on the other hand, state than, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of the three courses ; (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and taking in view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under sub-Section (3) of section 156. Where in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured, or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But, if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceedings or takes the view that though there is sufficient ground for proceeding against. Some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced, because, the First Information Report lodged by him would have failed of its purpose wholly or in part. Some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced, because, the First Information Report lodged by him would have failed of its purpose wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-Section (2) of section 157, sub-Section (2) of Section 157 and sub-section (2)(ii) of section 173 it must be presumed that the Informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because, that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the Officer-in-Charge of a police station under sub-Section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard, so that, he can make his submission to persuade the Magistrate to take cognizanee of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub Section (2)(i) of sec 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report." Magistrate's functions under sections 201 to 209 are judicial functions and is "inquiry " within the meaning of Section 2(g) of the Cade:- 19. It is well-settled that from the time the accused appears or is produced before the Magistrate with the police report under Section 170 of the Code, and the Magistrate proceeds to inquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an "inquiry'' as contemplated by Section 2(g) of the Code. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in State of Uttar Pradesh v. Lakshmi Brahman & Another ( 1983 (2) SCC 372 ) , wherein, D.A. Desai, J., speaking for the Court, observed:- "Section 2(g) of the Code defines "inquiry" to mean every inquiry other than a trial conducted under the Code by a Magistrate or Court-"..................Chapter XII of the Code incorporates provisions for initiating of investigation on receipt of information of a cognizable offence continuing the investigation culminating in the submission of a police report otherwise styled as charge-sheet to the Magistrate having jurisdiction, which would imply the end of investigation. Subseqnent proceedings before the Magistrate would be the commencement of inquiry or trial leading to either commitment for trial in the Sessions Court or to discharge or acquittal of the accused by the court having jurisdiction to try the case. Section 190 provides for taking cognizance of any offence by the Magistrate, one such made of taking cognizance of an offence being upon a police report if the facts disclose an offence. The report contemplated by Section 190(1)(b) is the one submitted to the Magistrate under Section 170. Sec 204 provides for issue of process. Section 207 provides that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to be the accused, free of costs, a copy of each of the documents set out therein Section 209 confers power on the Magistrate to commit the accused to the Court of Sessions when the offence disclosed in the police report is triable exclusively by it. Cognizance of an offence even if exclusively triable by the Court of Sessions, has to be taken by the Magistrate, because, Section 193 precludes it from taking cognizance of any offence when it provides that no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed by the Magistrate under the court. (Emphasis added)...............It is the Magistrate who take cognizance or the offence and not the Court of Sessions though the case is one exclusively triable by the latter .. - The dichotomy read by the High Court in sections 207 and 209 is certainly not borne out by the provisions of the Code. (Emphasis added)...............It is the Magistrate who take cognizance or the offence and not the Court of Sessions though the case is one exclusively triable by the latter .. - The dichotomy read by the High Court in sections 207 and 209 is certainly not borne out by the provisions of the Code. Section 207 as it then stood made it obligatory for the Magistrate to supply free of costs, copies of the documents set out in the section. The duty cast on the Magistrate by Section 207 had to be performed in a judicial manner. To comply with Section 207 which is cast in a mandatory language, when the accused is produced before the Magistrate, he has to inquire from the accused by recording his statement whether the copies of the various document set out in Section 207 have been supplied to him or not. No order of committing the accused to the Court of Session can be made under Section 209 unless the Magistrate fully complies with the provisions of section 207. And if it is shown that the copies of the relevant documents or some of them are not supplied, the matter will have to be adjourned to get the copies prepared and supplied to the accused. This is implicit in Section 207, and Section 209 provides that on being satisfied that the requisite copies have been supplied to the accused, the Magistrate may proceed to commit the accused to the Court of Session to stand his trial. The statutory obligation imposed by Section 207 read with Section 209 on the Magistrate to furnish free of costs copies of document is judicial obligation. It is not an administrative function. It is a judicial function which is to be discharged in a judicial manner. The Magistrate can proceed to commits the accused for trial to the Court of Session only after he judicially discharges the function imposed upon him by Section 207. No duty is cast on the Court of Session to inquire before proceeding to hear the case of the prosecution under see. 226 to ascertain whether the copies of the documents have been furnished to the accused, because Section 207 caste the obligation upon the Magistrate to perform the judicial function. No duty is cast on the Court of Session to inquire before proceeding to hear the case of the prosecution under see. 226 to ascertain whether the copies of the documents have been furnished to the accused, because Section 207 caste the obligation upon the Magistrate to perform the judicial function. Now, if under Section 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that Section 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears of is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to inquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceedings before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code. We find it difficult to agree with the High Court that the function discharged by the Magistrate under Section 207, is something other than judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code." 20. The same view has rightly been held by this Court in Swaroop Singh v. The State of Raj., 1976 Weekly Law Notes 167 (DB) and by K S. Sidhu, J., in Chauth Mal v. State of Raj. 1982 RLW 265 . What a Judicial Magistrate has to examining before committing a case to the Court of Sessions : 21. Facts in Sanjay Gandhi v. Union of India (supra), were that on an earlier occasion, the Supreme Court had fixed a reasonable, yet not hasty, time schedule for the committal proceedings in R.C. 2/1977 - CIA - I on the file of the Chief Judicial Magistrate, Delhi, with the consent of the parties then before the Supreme Court. Facts in Sanjay Gandhi v. Union of India (supra), were that on an earlier occasion, the Supreme Court had fixed a reasonable, yet not hasty, time schedule for the committal proceedings in R.C. 2/1977 - CIA - I on the file of the Chief Judicial Magistrate, Delhi, with the consent of the parties then before the Supreme Court. Then another accused, who was not a party to the earlier proceeding, came up before the Supreme Court with a petition praying for modification of the order fixing the time table for and injecting a sense of tempo into, the hearing process and committal, on the scope that it hurt him by denying sufficient scope to examine the voluminous records produced by the police running into around 20,000 pages. It was also urged that the petitioner wished to cross-examine the witnesses for the prosecution and to argue that no prima facie case had been made out for commitment. There were two approvers in the case and they were to be examined as witnesses in the court of the Magistrate taking cognizance of the offence and to cross-examine them, the petitioner needed to scrutinise those 20,000 pages of flies produced by the police which could not be done without a few months of inspection before examination of the witnesses, with regard to these arguments, his Lordship Krishna Iyer, J., speaking for the Court, observed:- "We proceed to elucidate certain clear certain propositions under the new Code bearing upon the committal of cases where the offence is triable exclusivably by the Court of Session. The committing Magistrate in such cases has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins. From this, it follows that the argument that the accused has to cross-examine, is out of bounds for the Magistrate save in the case of approvers. No examination-in-chief, no cross-examination. Secondly, it is not open to the criminal court to launch on a process of satisfying itself that a prima facie case has been made out on the merit. The jurisdiction once vested in him under the earlier code but has been eliminated now under the present Code. No examination-in-chief, no cross-examination. Secondly, it is not open to the criminal court to launch on a process of satisfying itself that a prima facie case has been made out on the merit. The jurisdiction once vested in him under the earlier code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remoulding Section 207A - (Old Code) into ts present non-discretionary shape. - In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session." 22. In Sajinder Kumar v. State (Through Special Police Establishment), AIR 1982 SC 1510 , his Lordship O. Chinnappa Reddy, J. (with whom V.R. Krishna Iyer, J. concurred), observed:- In the second place it may not be accurate to say that the committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure. Section 209, of the Criminal Procedure Code, 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed, the Magistrate may refuse to take cognizance of the case, or if the offence disclosed is not triable exclusively by the Court of Session, he may proceed to deal with it under the other provisions of the Code. To that extent the court of the committing Magistrate does discharge a judicial function." The same proposition of law Laid down in relation to a case launched by a complaint in Kewal Krishan v. Suraj Bhan, AIR 1980 SC 1780 . Review and Conclusions : 23. The result of the above discussion can be concretised as follows:- (1) When the Magistrate takes cognizance, he takes cognizance of an offence and not of the offender. Review and Conclusions : 23. The result of the above discussion can be concretised as follows:- (1) When the Magistrate takes cognizance, he takes cognizance of an offence and not of the offender. Once the Magistrate takes cognizance of the offence, it is his duty to find out who the offenders really were once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is duty to proceed against those persons. The summoning of additional accused is a part of proceeding initiating by his taking cognizanee of an offence. As to who actually the offenders involved in the case might have been has to be the Magistrate after taking cognizance of the offence. On perusal of the record, he has to satisfy himself that there were prima facie grounds for issuing process against a person under Section 204 of the Code. (2) The Magistrate is not bound to accept the opinion of the police that there is a case for placing the accused on trial or that there is no care made out for sending up an accused for trial. It is open to the Magistrate to take the view that the facts disclosed in the police report do not constitute an offence for taking cognizance or that there is not sufficient material to justify an accused being put on trial. On the other hand in the case of a final report or in a case where the police does not forward a person as an accused, the Magistrate can equally, upon the facts set out in the final report and the material sent along with it, form an opinion that an offence has been committed and refuse to accept the final report of the police and after taking cognizance of the offence, issue process to the accused. He may decide to issue process even if the police recommended that there is no sufficient ground for proceeding further. He may decide to issue process even if the police recommended that there is no sufficient ground for proceeding further. Thus, the Magistrate can ignore the conclusions arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case if he thinks fit, in exercise of his powers under sections 190(1 )(b) and direct the issue of process under Section 204 of the Code to persons who may be found by him prima facie to be involved in the commission of the offence. The summoning of the additional accused is also a part of proceeding initiating by his taking cognizance of an offence. (3) The Officer-in-Charge of a police station is obligated under subsection (2)(ii) of Section 173 of the Code to communicate the action taken by him to the lodger of the First Information Report and the report forwarded by him to the Magistrate under sub-section (2)(i) of Section 173 has to be supplied by him to the in format. When on a consideration of the report made by the Officer-in-Charge of a police station under sub-section (2)(i) of section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard no that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. (4) Cognizance of an offence even if exclusively triable by the Court of Session, has to be taken by the Magistrate, because Section 193 of the Code precludes it from taking cognizance of any offence when it provides that no Court of session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed by the Magistrate under the Code. No order of committing the accused to the Court of Session can be made under Section 202 unless the Magistrate fully complies with the provisions of 207 which cast a mandatory duty upon him to supply free of costs, copies of the documents set out in the section. The duty cast on the Magistrate by Section 207 has to be performed in a judicial manner. The duty cast on the Magistrate by Section 207 has to be performed in a judicial manner. The making of an order committing the accused to the Court of Session, is a stage in the inquiry and the inquiry culminates in making the order of commitment, from the time the accused appears or is produced before the Magistrate with the police report and the Magistrate proceeds to inquire whether Section 207 has been complied with the then proceeds to make an order of committing the accused to the Court of Session under Section 209, the proceeding before the Magistrate would be an "inquiry" as contemplated by Section 2(g) of the Code. The Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed the Magistrate may refuse to take cognizance oi the case or if there offence disclosed is not triable exclusively by the Court of Session, he may proceed to deal with it under the other provisions of the Code. To that extent the court of the committing Magistrate does discharge a judicial function. 24. The learned Single Judge in Hari Mohan v. State of Rajasthan (supra), was utterly wrong in holding that in the scheme of the procedure for commitment to the Court of Sessions as provided under the Code of Criminal Procedure, 1973, there was no power to the Magistrate to make any inquiry in a case instituted on police report where the offence is triable exclusively by the Court of Session. The view is quite in conflict with the decisions of their Lordships of the Supreme Court in State of U.P. v. Lakshmi Brahman and Anr. ,(supra) and in Rajendra Kumar v. State (Through Special Establishment) (supra) and is, therefore, overruled. Equally is the learned Single Judge in Hari Mohan's case (supra) was totally wrong in holding that in a case which is instituted on a police report, the Magistrate under Section 209, Cr PC had no jurisdiction to take cognizance and commit such accused persons also whose name did not appear to the charge-sheet. The view runs counter to the decisions of their Lordships of the Supreme Court in Raghubans Dube v. Stale of Bihar (supra); Hareram Satpathy v. Tikaram Agarwala & Ors. (supra); and M/s. India Carat Pvt. Ltd. v. State of Karnataka and Anr. The view runs counter to the decisions of their Lordships of the Supreme Court in Raghubans Dube v. Stale of Bihar (supra); Hareram Satpathy v. Tikaram Agarwala & Ors. (supra); and M/s. India Carat Pvt. Ltd. v. State of Karnataka and Anr. , (supra). The decision in Sanjay Gandhi v. Union of India & Ors. , (supra) of the Supreme Court, which was relied upon by his Lordship M M. Kasliwal, J. (as he then was), was concerned with the powers of committing Magistrate under Section 209 of the Code and was in connection with a different context. In Sanjay Gandhi's case (supra), his Lordship Krishna Iyer, J. was rejecting the argument advanced by Mr. A.N. Mulla on behalf of the accused that he wished to cross-examine before the Chief Municipal Magistrate, the witnesses for the prosecution and to argue that no prima facie case had been made out for commitment and further that there were two approvers in the case which were to be examined as witnesses in the court of the Magistrate taking cognizance of the offence and to cross-examine them the accused needed to scrutinise voluminous records and as such the time-table fixed by the Supreme Court for, and injecting a sense of tempo into, the hearing process and committal be modified. Their Lordships were not examining the question as to whether a Magistrate can issue process against a person not shown as accused by the police in its report, in a case triable exclusively by the Court of Sessions, immediately after taking cognizance or subsequent to it, before committing the case and without recording evidence for the purpose. 25. In the case before us, the police in its report had only filed charge sheet against Giri Raj Singh, Bhoori Singh and Banno alias Badan Singh. It had not shown Devi Singh petitioner as an accused in the charge-sheet. The complainant submitted a protest petition before the Additional Chief Judicial Magistrate, Deeg, mentioning that in the First Information Report lodged by him, he had clearly specified a principal role having been played by Devi Singh during the incident resulting in the murder of Bachu Singh and in the statements under Section 161, Cr. PC recorded by the police, the witnesses had implicated Devi Singh also in the commission of the offence. PC recorded by the police, the witnesses had implicated Devi Singh also in the commission of the offence. The Additional Chief Judicial Magistrate, after perusing the police report, the statements recorded by the police under Section 161, Cr. PC and other documents submitted along with the police report prima facie found Devi Singh petitioner also involved in the commission of offence and ordered for the issue of process against him. This the Additional Chief Judicial Magistrate, Deeg was perfectly competent to do as per the decisions of Supreme Court in Raghubans Dube v. State of Bihar (supra) ; Hareram Satpathy v. Tika Ram Agarwal and others (supra) Bhagwant Singh v. Commissioner of Police : (supra); and M/s. India Carat Pvt. Ltd. v. State of Karnataka (supra) and without recording any evidence. Once the Magistrate took cognizance of the offence, it was his duty to find out who the offenders were and once he came to the conclusion that apart from the persons sent up by the police, Devi Singh petitioner was also involved in the commission of the offence, it was his duty to proceed against him. The summoning of Devi Singh was clearly a part of proceeding initiating by his taking cognizance of the offence In this view of the matter, the question, as to whether the term, "evidence", appearing in Section 319 of the Code includes only the statements recorded on Oath before the court or it would also include the statements of the witnesses recorded under Section 161, Cr.PC by the police and other documents produced by the police along with its report to the Magistrate under Section 173 of the Code, need not be answered by us in this reference. Resultantly, we need not decide whether the Full Bench decision of this Court in Dalip Singh & Ors. v. State of Rajasthan (supra) needs re-consideration or not and whether the earlier Division Bench decision in Sheo Ram Singh v. The State of Rajasthan (supra) Laid down the correct law or not. We only hold that the learned Single Judge in Hari Mohan v. The State of Rajasthan (supra) did not lay down the correct law and we overrule the decision given in Hari Mohan's case (supra). Obiter observations with regard to the meaning to be attached to the term "evidence" used in see. 319 Cr.PC. 26. We only hold that the learned Single Judge in Hari Mohan v. The State of Rajasthan (supra) did not lay down the correct law and we overrule the decision given in Hari Mohan's case (supra). Obiter observations with regard to the meaning to be attached to the term "evidence" used in see. 319 Cr.PC. 26. Before parting with this order, I would like to observe that I feel that on a proper occasion when the question would directly arise in any case, the Full Bench decision in Dalip Singh & Ors. v. State of Rajasthan , (supra) might call further scrutiny and reconsideration. The provisions corresponding to Section 319 of the Code was section 351 of the former Criminal Procedure Code of 1898. Sec, 351 of the old Code provided that any person attending a criminal court, although not under arrest or upon a summons, might be detained by such court for the purpose of inquiry into or trial of any offence of which such court could take cognizance which from the evidence might appear to have been committed and might be proceeded against as though he had been arrested or summoned. It further provided that when such detention took place in the course of an inquiry under Chapter XVIII of the old Code or after a trial had begun the proceeding in respect of such person should be commenced afresh and the witnesses reheard. Under that section, it was not open to the court to summon a person who was not attending the court and join him in a pending criminal proceeding even though it appeared to the court that evidence in the proceedings disclosed that such person was also involved in the commission of any offence connected with the one for which the accused already before the court was on trial. Since it was found desirable to empower the criminal court to take action against such person also, Parliament, on the recommendation of the Law Commission in its 41st Report, introduced Section 319 in the present Code. 27. Since it was found desirable to empower the criminal court to take action against such person also, Parliament, on the recommendation of the Law Commission in its 41st Report, introduced Section 319 in the present Code. 27. Reference may be made to the decision of their Lordships of the Judicial Committee of the Privy Council in Bhuboni Sahu v. The King, AIR 1949 PC 257 , the question arose regarding the admissibility of the confession of Trinath (a co-accused), recorded under Section 164 of the Old Criminal Procedure Code, which implicated himself and the appellant Bhuboni Sahu in the commission of the murder, but which was retracted by him in the Sessions Court. Sir John Beamount, dealing with it, observed:- "Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3, Evidence Act. It is not required to be given on Orth, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities." (See also Kashmira Singh v. State of M.P., AIR 1952 SC 154). 28. In State of Delhi v. Shri Ram Lohia, AIR 1950 SC 490 . it was held that statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. Similarly, it was held in the State of Bombay v. Rusy Mistry & Anr., AIR 1960 SC 391 that "first information report" is cot a substantive evidence, but, can only be used to corroborate or contradict the evidence of the information given in court or to impeach his credit. It is further clear that a statement of a witness recorded by the police under Section 161, Cr.PC cannot be used for any purpose other than provided by proviso to Section 162(1) of the Code. It is further clear that a statement of a witness recorded by the police under Section 161, Cr.PC cannot be used for any purpose other than provided by proviso to Section 162(1) of the Code. The statement made to a police officer during the investigation, can be used by the accused only for the purpose of contradicting the prosecution witness under Section 145, Evidence Act. Only a dying-declaration and information received from the accused in the custody of police officer are admissible in evidence by virtue of the provisions of clause (1) of Section 32 and Section 27 respectively of the Indian Evidence Act read with sub-Section (2) of Section 162 of the Code. 29. Her Lordship Kanta Bhatnagar, J., speaking for the Full Bench in Dalip Singh's case (supra), observed:- "Section 319 does not impose any restriction for the exercise of power by the Court under that section during the course of trial only. It rather empowers into proceed under that provision even during course of any inquiry into the matter. sections 226, 227 & 228 of the Code relate to the inquiry stage before the Sessions Court. We respectfully disagree with the view taken by the Division Bench in Sheo Ram Singh's case that without there being statement recorded by the court, the Sessions Judge has no power to proceed against a person not an accused in the committal order, because, as discussed earlier, in our opinion, while exercising powers under Section 227 relating to discharge of an accused, the court has not only the power but also a duty to embark on an inquiry be carefully perusing the document submitted before it as to whether any person other than those before court prima facie appears to be in any way involved in the crime and should be tried along with the accused already there before the Court. In doing so, the procedure Laid down in section 319 would be followed and by virtue of the deeming provision of sub-Section (4)(b) of that section, the case would proceed as if such person had been an accused person when the court took cognizance of the offence upon which inquiry or trial was commenced. Thus, the meaning of the term 'evidence' appearing in Section 319 would he construed as it is ordinarily done and would not be narrowly construed so as to mean only statements recorded before the Court. Thus, the meaning of the term 'evidence' appearing in Section 319 would he construed as it is ordinarily done and would not be narrowly construed so as to mean only statements recorded before the Court. Restricting the scope of Section 319 would fetter the discretion of the court with the limitation the despite there being material it cannot proceed against a person against whom there appears to be a prima facies case unless charge under Section 228 is framed and some evidence is recorded thereafter. 30. The learned Judge also referred to the definition of the term "evidence" gieen in Section 3 of the Indian Evidence Act and observed that the learned Judges in Sheo Ram Singh's case, mostly dealt with the definition of oral evidence given in clause (1) of Section 3 of the Evidence Act. The police papers filed along with the challan and sent to the Court of Sessions, when the case is committed, fall within the ambit of documents produced for the inspection of the court and hence "evidence". It may be mentioned that sections 227 & 228 of the Code are more or less on the same lines as sections 239 & 240 of the Code. In none of these sections, the word "evidence" has been used. Both in sections 227 & 228 of the Code, the language used or referred is "If, upon consideration of the record of the case & the documents submitted there with" and no where, the word "evidence" has been used. Similarly in sections 239 & 240 of the Code, the expression "If, upon considering the police report and the documents sent with it under Section 173" have been used. I find it difficult to comprehend as to what relevance sections 227 & 228 of the Code have while interpreting Section 319 of the Code as also the word "evidence" used therein. 31. In Ramnarayan Nor & Anr. v. The State of Maharashtra, AIR 1964 SC 949 , the question for consideration was whether the term "evidence" used in sub-secs (6) & (7) of Section 207-A of the former Criminal Procedure Code of 1898 was restricted only to matters which were disclosed by the oral evidence and did not include documentary evidence. The contention on behalf of the accused was that it did not include documentary evidence but it was rejected by the Court. The contention on behalf of the accused was that it did not include documentary evidence but it was rejected by the Court. Shah, J , speaking for the majority, made the following observations : "It is true that the Legislature has used the expression "evidence" at three places in clause (6) of section 207A.................. There has been a deliberate change of phraseology in using the expression "the evidence in clause (6). In the opening clause, the evidence referred to is evidence taken under sub-Section (4) and as we have already observed in the last clause, the expression "such evidence" presumably is the evidence referred to in sub Section (4). But in the next of the examination of the accused for the purpose of enabling him to explain and circumstance appearing against "him, the Legislator has used the expression "in the evidence against him", which is not expressly qualified by reference to sub-Section (4) nor does any implication arise from the context would suggest that it has a limited content. It was urged in the alternative by counsel for the appellants that even if the expression "evidence" may include documents, such documents would only be those which are duly proved at the inquiry for commitment, because what may be used in a trial civil or criminal, to support the judgment of a court is evidence duly proved according to law. But, by the Evidence Act which applies to the of all criminal cases, the expression "evidence" is defined in section 3 as meaning and including all statements which the court permit s or requires to be made before it by witnesses, in relation to matters of fact under inquiry and documents produced for the inspection of the court. There is no restriction in this definition to documents which are duly proved by evidence. Normally, in a criminal trial, the court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended Code, the Legislature has in Section 207-A prescribed a special procedure in proceedings for commitment of the accused. The record consists of the oral evidence recorded under sub-section (4) of Section 207-A, and it would be difficult to regard only those documents which are admissible without proof as "evidence" within the meaning of clause (6) and not the rest ........... The record consists of the oral evidence recorded under sub-section (4) of Section 207-A, and it would be difficult to regard only those documents which are admissible without proof as "evidence" within the meaning of clause (6) and not the rest ........... The object of the examination, it may be remembered is to afford an opportunity to the accused to explain any circumstances appearing against him. He may avail himself of the opportunity, but he is not obliged to do so, and if he does not avail himself of the opportunity he is by the statute exposed to no prejudicial consequences.............. The scheme of clause (6) of sac. 207-A is not the same of the scheme in Section 342 of the same as the scheme in Section 342 of the Code of Criminal Procedure. Under the latter section, the court is authorised to put questions to the accused for the purpose of enabling him to explain any circumstances appearing against him and the court is required for that purpose to question him generally on the case after the witnesses for the prosecution have been examined and before he is called upon to enter upon his defence. But, Section 207-A(6) does not contemplate such general questioning; it contemplates examination only for the purpose of explaining any circumstances appearing against the accused. Therefore by merely failing to avail himself of the opportunity to explain circumstances to which his attention is drawn, the accused does not refuse to answer a question which would justify a presumption against him that the answer if given would be against him.................The Legislature has in inquiries in warrant cases, contemplated examination of the accused solely upon the circumstances appearing from the documentary evidence referred to in section 173(4) and it cannot be assumed that the examination of the accused in respect of the circumstances appearing from those documents which are not proved but of which copies have been furnished to the accused, is so inconsistent with the principles of criminal jurisdiction that it must be discountenanced. If opportunity may be given to an accused person before framing a charge under Section 251 -A(2), to explain circumstances appearing the documents referred to in Section 173(4), it is difficult to see any ground on which the Magistrate holding an inquiry for commitment may be dis entitled to do so under section 207-A(6). If opportunity may be given to an accused person before framing a charge under Section 251 -A(2), to explain circumstances appearing the documents referred to in Section 173(4), it is difficult to see any ground on which the Magistrate holding an inquiry for commitment may be dis entitled to do so under section 207-A(6). It would be somewhat anomalous, if it were true, that in the inquiry before framing a charge against the accused in respect of a charge for an offence which is triable by the Court of Session as well as by a Magistrate, two different rules relating to the examination of the accused would prevail, according as the accused is to be tried by the Court of Session or by the Magistrate." 32. It appears to me that the Full Bench in Dalip Singh's case (supra), has adopted in verbatim the majority view of the Supreme Court in Ramnarayan Mor and Anr. v. The State of Mah. (supra) for interpreting the meaning of the term "evidence", finding place in Section 319 of the Code. As is clear, the Supreme Court was interpreting the expression "(he evidence" used in Section 207-A of the former Code of Criminal Procedure, 1898 and not the word "evidence" used in Section 319 of the Code. I may also quote the minority view given by Aiyyangar, J., in Ramnarayan Mor's case. He observed - "The last submission of Mr. Setalvad was based on the definition of the expression "evidence" in Section 3 of the Indian Evidence Act where evidence is defined thus : Evidence means and includes.....(1) oral evidence and (2) all documents produced for the inspection of the court, such documents are called documentary "evidence". Based on this definition, and taken in conjunction with the fact that under Section 207-A the documents referred to in S. 207-A (3) are treated as material upon which the court might arrive at the conclusion that a prima facie case has been made out against the accused, it was submitted there was no impropriety in referring to these documents as "evidence" were not impressed by this argument. Perhaps it might not be a great objection that the expressions are defined in Section 3 only for the purpose of Indian Evidence Act and thus, we would add, is merely the dictionary meaning of the word. Perhaps it might not be a great objection that the expressions are defined in Section 3 only for the purpose of Indian Evidence Act and thus, we would add, is merely the dictionary meaning of the word. The more serious objection is the use of this definition of the purpose of importing probative value to the documentary evidence which might be inadmissible or irrelevant or prohibited by law and in any event not proved so as to permit a court to look into them for basing any judicial decision apart from any statutory provision to the contrary. If the expression "evidence" is used throughout the Criminal Procedure Code as meaning judicial evidence, i.e. oral evidence tested by cross-examination, if only, and documentary evidence which has been proved and which has been held to be relevant and admissible, it would, to say the least, be a strange use of that word in the provision now under consideration that it means documents produced for "the inspection of the court", If it is used merely "for the inspection of the court", it is obvious that the court could not on its terms base any finding on the contents of such a document, and in fact that would have the position but for the special provision contained in Section 207-A and Section 251-A. We have, therefore, no hesitation in rejecting this submission also . The whole scheme of See. 207-A proceeds on drawing a clear and sharp line of distinction between the two terms "evidence" and "documents", the latter meaning the documents referred to in Section 178 and that dichotomy is maintained throughout admittedly twice in sub-section (6) and sub-section (7)." 33. I may mention that in Ramnarayan Mor's case (supra), the appellants were already accused persons and both of them had been committed to the Court of Sessions. There was no question of adding or charging an additional person as accused who had not been committed by the Magistrate. It was even recognised by Shah, J, speaking for the majority, that "normally in criminal trial, the court can proceed on documents which are only proved, or by the rules of evidence made admissible without formal proof. It was then stated that in the amended Code, the Legislature has in Section 207-A prescribed a special procedure in proceedings for commitment of the accused. It was then stated that in the amended Code, the Legislature has in Section 207-A prescribed a special procedure in proceedings for commitment of the accused. Moreover, if the accused did not avail himself of the opportunity to explain any circumstances appearing against him in evidence, he was statute exposed to no prejudicial consequences. As against this, addition of a person as an accused alter the case is committed by the Court of Sessions, does cause prejudicial consequences to him. 34. As a matter of fact, the scope and admit of Sec; 319 of the Code had directly come for consideration before the Supreme Court in Joginder Singh v. State of Pun. (supra) Facts in Joginder Singh's case (supra) were that at the instance of one Mohinder Singh a criminal case was registered by the police against Joginder Singh, Ramsingh (the two appellants), Bhansingh Darshan Singh and Ranjit Singh; During investigation, the police found Joginder singh and Ramsingh (the appellants) to be innocent and, therefore, a charge-sheet was submitted by the police only against the remaining three accused Bhansingh, Darshansingh and Ranjitsingh. The Magistrate, who held a preliminary inquiry, committed the said three accused to the Sessions Court and the Additional Sessions Judge, Ludhiana framed charges against the three accused for offences under sections 452/308/323 read with Section 34 IPC but, at the trial, evidence of Mohinder Singh and Ajaib Singh was recorded during the course of which both of them implicated Joginder Singh and Ram Singh in the incident. Thereupon, at the instance of Mohinder Singh, the Public Prosecutor moved an application before the Additional Sessions Judge for summoning and trying Joginder Singh and Ram Singh along with the three accused, who were already facing their trial. The Additional Sessions Judge passed an order directing that the attendance of the two appellants be procured and further directing that they should stand their trial together with the three accused. The matter ultimately went before the Supreme Court and it was urged on behalf of the appellants that it was not open to the Additional Sessions Judge to pass the impugned order. The matter ultimately went before the Supreme Court and it was urged on behalf of the appellants that it was not open to the Additional Sessions Judge to pass the impugned order. It was contended that Section 319 of the Code, in its application to the Sessions Court, was subject to or subordinate to Section 193 and that the phrase "any person not being the accused" occurring in the section excludes from its operation an accused who had been released by the police under Section 169 of the Code had been shown in Column No. 2 of the charge-sheet. His Lordship Tulzapurkar, J., rejecting the contentions, observed: "A plain reading of Section 319(1), which occurs in Chapter-XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the courts including a Sessions Court and such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as and direct him to be tried along with the other accused. It will be noticed that both under Section 193 and Section 209, the commitment is of "the case" and not of "the accused" whereas under the equivalent provision of the old Code, viz Section 173(1) and Section 207-A, it was "the accused" who was committed and "the case". It will be noticed that both under Section 193 and Section 209, the commitment is of "the case" and not of "the accused" whereas under the equivalent provision of the old Code, viz Section 173(1) and Section 207-A, it was "the accused" who was committed and "the case". It is true that there cannot be a committal of the case without there being an accused person before the court, but, this only means that before a case in respect of an offence is committed, there must be some accused suspected to be involved in the crime before the court, but, one the case in respect of the offence qua those accused who are before the court is committed then the congnizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it, otherwise, the conferring of the power under Section 319( ) upon the Sessions Court would be rendered nugatory. Further Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision, it is provided that where the court proceeds against any person under sub-section (1), then the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commence; in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence. It will thus appear clear that under section 193 read with section 209 of the Code when a case is committed to the Court of Session in respect of an offence, the Court of session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under section 319(1) can come into play and such court can add any person not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle, there would be no question of reading section 319(1) subject or subordinate to section 193. As regards the phrase, "any person not being the accused" occurring in section 319.. The said expression clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like section 319(1) clearly show that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are included in the said expression." The portions underlined by me in the above quotation from Joginder Singh's case (supra), only indicate that the evidence should be recorded at the trial and should come before the Criminal Court during trial and that evidence obviously can be oral evidence recorded during trial and the documentary evidence proved during the trial (which is admissible and relevant) as well as such documentary evidence for which no formal proof is required by the law of evidence applicable to the Criminal Court. 35. Reference may also be made to the decision in Mahant Amar Nath v. State of Haryana and another, 1983 (1) SCC 391 wherein, it was observed:- "The learned Sessions Judge had before him the evidence of Govind Ram who gave details about the alleged participation of Mahant Nath and others which according to him was in pursuance of conspiracy hatched by all of them and the learned Sessions Judge fell that such evidence warranted the impleading of Mahant Amar Nath and three others as accused persons. It was sought to be urged before us that the details given by Govind Ram at the trial had not figured in his statement under section 161 and, therefore, the Sessions Judge ought not to have given the impugned-direction. But that aspect clearly falls within the domain of appreciation of evidence to be done finally at the end of the trial before pronouncing upon the guilt or otherwise of the concerned accused. It cannot be disputed that there was sufficient material before the learned Sessions Court warranting the impugned direction." The decision in Municipal Corporation of Delhi v. Ram Kishan Rohatgi, 1983(1) SCC 1 : AIR 1983 SC 67 is also relevant on the point. 36. In the end, I may refer to the following observations made by S.S. Sandhawalia, C.J. in Dr. Shamim Ahmed Khan v. State of Bihar, 1986 Cri. LJ 1383 (DB) (Patna):- "The somewhat curious contention of the learned counsel that police diaries and statements under Section 161 of the Code must not only be looked into, but be given preference to the evidence recorded in court for the purpose of summoning an accused person under section 319 has only to be noticed and rejected. Reference in this context must necessarily be made to Section 162 of the Code which shows the stringent limitation placed on the use of statements made to the police under Section 161. The prohibition that such statement if reduced into writing shall not be signed by the person making it is itself significant. Coupled therewith is the categoric mandate in sub-section (1) thereof that such statement under Section 162 shall not be used for any purpose whatsoever, except as provided under the proviso thereto. It is thus amply plain and indeed is well-settled that statements to the police for purposes of evidence in court are limited for confronting and contradicting such evidence in the manner provided in Section 145 of the Evidence Act. Any other use or reliance thereon is expressly prohibited by the statute. Consequently, the somewhat blanket argument that such statements under Section 161 of the Code and the police diaries should have pre-eminence and claim preference over the evidence recorded on oath in a sessions trial, has to be rejected. Any other use or reliance thereon is expressly prohibited by the statute. Consequently, the somewhat blanket argument that such statements under Section 161 of the Code and the police diaries should have pre-eminence and claim preference over the evidence recorded on oath in a sessions trial, has to be rejected. Indeed, in the event of a conflict between the sworn testimony before the court and the mere unsigned and unaffirmed statements to a police officer, superior weight and pre-eminence must be given to evidence in court, and not to alleged statements made before the minors of the investigating agency. The stand of the learned counsel for the petitioner that police diaries alone could negate the power of the court to proceed against an accused person and summon him for trial on the basis of the testimony before it must consequently fail." 37. The above decisions referred to by me are weighty enough justifying on proper occasion reconsideration of the Full Bench decision in Dalip Singh and others v. State of Rajasthan (supra). 38. So far as the present case is concerned, I have already concluded that the Additional Chief Judicial Magistrate was perfectly competent to find that Devi Singh petitioner was involved in the commission of the offence and to order for the issue of process against him as part of proceeding initiating by his taking cognizance of the offence. Consequently, the question as to whether the term "evidence" appearing in Section 319 of the Code includes only the evidence recorded on oath during inquiry or trial before the court or it would also include the statements of the witnesses recorded under Section 161, Cr.PC by the police and other documents produced by the police along with its report to the Magistrate under Section 173 of the Code neither needs to be answered by us nor need we decide whether the Full Bench decision of this Court in Dalip Singh's case (supra) needs reconsideration or whether the earlier Division Bench decision in Sheo Ram Singh's case (supra) Laid down the correct law or not. We only hold that the learned Single Judge in Hari Mohan's case (supra) did not lay down the correct law and we overrule the decision given in Hari Mohan's case (supra). 39. Reference is accordingly answered. We only hold that the learned Single Judge in Hari Mohan's case (supra) did not lay down the correct law and we overrule the decision given in Hari Mohan's case (supra). 39. Reference is accordingly answered. Let our answer go before the Bench which referred the question for answer by the Division Bench for disposal of the petition under Section Cr. PC 482 in the light of the answer given by us.Reference Answered. *******