JUDGMENT 1. - An incident occurred on 28.2.1985 in the Court premises at Jaipur. According to the complainant he was beaten by Nasir Mohammad and Sharif Mohammed by blows and kicks after being detained by them. He lodged a report at the police station Sadar, Jaipur and after investigation a challan was presented against Nasir Mohammed for the offences under sections 325 and 341 IPC. The Magistrate took cognizance against Nasir Mohammed. The complainant presented a protest petition and on considering the same, the learned Magistrate called for the attendance register of the office of the General Manager Telephones, where Sharif Mohammed was working and also took into consideration the order-sheet in criminal case pending before a Court and found that though Sharif Muhammed was shown present in the office according to the attendance register but he was present in the Court in some other case on that very day and considering this, cognizance was taken against Sharif Mohammed also. Both Sharif Mohammed and Nasir Mohammed were tried for the offences under sections 323 and 341 IPC and found guilty and were convicted by the learned Magistrate on 19th Dec. 1986. Each of them was directed to pay a fine of Rs. 200/- for the offence under Section 341 IPC and Rs. 400/- for the offence under Section 323 IPC. In default of payment of fine they were directed to undergo simple imprisonment for five days on each count. 2. Against this conviction and sentence both the accused preferred appeals and they came to be disposed by the Additional Sessions Judge, Jaipur City, Jaipur on 20th July, 1989. The conviction and sentence of Nasir Mohammed was maintained. As far as accused Sharif Mohammed is concerned, it was held that cognizance against him was not taken properly as the Magistrate did not treat the protest petition as a complaint and did not record the statements under section 202 IPC. He there set aside the conviction of Sharif Mohammed and remanded back the case to the Court of the Judicial Magistrate for proceeding against him according to law. 3. Against this decision of the learned Additional Sessions Judge the complainant has filed a revision challenging the setting aside of the conviction of Sharif Mohammed, while Sharif Mohammed has filed a revision praying that the order of the learned Additional Sessions Judge be set aside and he be discharged. 3. Against this decision of the learned Additional Sessions Judge the complainant has filed a revision challenging the setting aside of the conviction of Sharif Mohammed, while Sharif Mohammed has filed a revision praying that the order of the learned Additional Sessions Judge be set aside and he be discharged. In the third revision petition the petitioner Nasir Mohammed has challenged his conviction. He has also made a prayer that he should be released on probation. 4. All these revision petitions are being disposed by this common order. 5. First of all I shall take up the case of accused Sharif Mohammed. The learned counsel for the complainant has contended that after taking cognizance of an offence, when the Magistrate proceeds against one accused only then he can take cognizance against other persons under Section 319 Cr.P.C. and in the present case cognizance has been taken under this provision and not under section 190(1) Cr.P.C. According to him the use of the word "cognizance" does not mean that the Magistrate has proceeded under this provision. In any case it is contended that the proceedings would not stand vitiated. Under Section 461 Cr.P.C. the irregularities which vitiate proceedings have been given, but then it refers to those cases where a Magistrate not being empowered by law in this behalf does any of the things given in the clauses (a) to (q). Sub-clause (k) says about taking of cognizance of an offence under clause (c) of sub-section (1) of section 190 Cr.P.C. The provisions of section 461 Cr.P.C. would come into operation only if the Magistrate was not empowered by law to do that act. According to the learned counsel for the complainant it was open to the Magistrate to proceed against the accused who had not been challenged, if he found that there was material for doing so and this the Magistrate could do so at any stage of the proceedings without following the procedure laid down in sections 200 Cr.P.C. and 202 Cr.P.C. In this connection he has placed reliance on Messers India Carat Pvt. Ltd. v. State of Karnataka and anr., 1989 CAR 139 . In this case it was held that the Magistrate may agree or disagree with the police report and he may take cognizance under section 190(1)(b) Cr.P.C. The Magistrate can issue process on the basis of statements recorded by the police under section 161 Cr.P.C. without following the procedure under sections 20U and 202 Cr P.C. 6. The learned counsel for the complainant has also brought to my notice that the order taking cognizance was not challenged by Sharif Mohammed soon after the cognizance was taken and he did not challenge the same in his memo of appeal, but subsequently got it amended and took up this ground. 7. On behalf of the accused Sharif Mohammed, it has been contended that the Magistrate was not empowered to take cognizance or to order further investigation once the cognizance had been taken against Nasir Mohammed alone. According to him, the Magistrate cannot conduct enquiry or investigation in order to find out against which person he should proceed and he could not have taken cognizance against this accused. At the most he could have treated the protest petition as a complaint and proceeded in accordance with sections 200 and 202 Cr.P.C. It is also contended that under section 461 Cr.P C. the irregularities which are mentioned vitiates the proceedings and as taking of cognizance is included in sub-clause (k). In the present case there is such irregularity which vitiates the proceedings. He has placed reliance on the following decisions. 8. In Ram Narain v. Loku Ram, 1986 RLR 147 , it has been held that if the Magistrate in a complaint case decides to postpone issue of process under section 202(1) Cr.P.C. he cannot direct investigation to be made by police officer without first examining complainant and witnesses present. The cognizance taken on the basis of police report was quashed. Proviso (b) to sub section (1) of Section 202 was relied upon for arriving at this conclusion. 9. In Bagh Singh v. The State of Rajasthan, 1985 RLW 428 , it has been held that a Magistrate can take cognizance when police report is filed and not afterwards. Later on he can take cognizance only under Section 319 Cr.P.C. It was held that cognizance of offence taken after passing of the stage of section 190(1 )(b) and before stage of section 319 is reached is not justified. Later on he can take cognizance only under Section 319 Cr.P.C. It was held that cognizance of offence taken after passing of the stage of section 190(1 )(b) and before stage of section 319 is reached is not justified. The Magistrate could take cognizance under Section 319 Cr.P.C. only after a single witness is examined during the course of enquiry or trial. 10. In Ram Das Kelu Naik v. V. M. Muddayya and anr., 1978 Cr.LJ 1043 , it was held that in summary trial the Magistrate records evidence and his successor cannot proceed from that stage onwards. This irregularity is not curable. Section 326 Cr.P.C. was held to be an exception to this rule. The cardinal principle of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. But summary trials are not included in this. 11. Before considering the contentions I may also refer to the Full Bench decision of this Court in Dalip Singh and others v. State of Rajasthan, 1988(2) RLR 207 . In this case the earlier view that recording of statement in the Court is pre-requisite for proceeding under Section 319(1) Cr.P.C. and adding a person as an accused was held to be good law. The view taken in Ajaib Singhs case (1978 RLW 9) and followed in Harirams case (1979 Cr.L.J. (Raj.) 248, was accepted. It has been clarified that section 319(1) is to be passed into service upon the prima facie satisfaction of the court and if the Court is satisfied that there is material to proceed the there is no necessity for postponing action under that section till some statement is recorded. 12. In the present case two persons are said to have committed the offence as per the complaint. After investigation the police did not arrive at a finding that no occurrence took place. The occurrence as stated did take place, but challan against one of the accused was not presented on the ground that he was marked present in his office. The Magistrate took cognizance against one accused only. Subsequently the complainant placed material before the court to show that the accused in question had been marked present in court proceedings on that very day. The Magistrate took cognizance against one accused only. Subsequently the complainant placed material before the court to show that the accused in question had been marked present in court proceedings on that very day. The matter was found clear and it was discovered that the accused may be present in his office but for some time in the day he was also present in court and occurrence in the present case took place in the court premises. Upon this material the Magistrate took cognizance against accused Sharif Mohammed also. First of all it can not be said that this is a case wherein cognizance has been taken by the Magistrate, who was not empowered in this behalf. Cognizance has also not been taken under section 190(1) (b) Cr. P.C., but it has been taken under section 319(1) Cr. P.C. For proceeding under this provision, it was not necessary to record the statements of the complainant under sections 200 and 202 Cr. P.C. The statements under section 161 Cr. P.C. were already before the court and when there was material to show that the alibi put forth by the accused was not fully reliable the court took cognizance and issued process and tried the accused. This proceeding is under section 319 Cr. P C. and it can be said that for proceeding under section 319 Cr. P.C. it is not necessary that the court should first examine some witnesses in the present case. The word evidence as used in section 319 Cr. P.C. cannot be confined to evidence in the nature of statements of the witnesses, but it includes evidence of some other nature and in the present case it is the order sheet in a criminal case. Thus, there was material on the basis of which the Magistrate could proceed under section 319 Cr. P.C. The cognizance taken by him cannot be said to be vitiated in any manner so as to vitiate the proceedings. The learned Additional Sessions Judge has wrongly arrived at the conclusion that the failure of proceeding under section 200 and section 202 Cr. P.C. has vitiated the proceedings. 13. As far as the accused Nasir Mohammed is concerned, he has been found guilty by the two courts. The learned Additional Sessions Judge has wrongly arrived at the conclusion that the failure of proceeding under section 200 and section 202 Cr. P.C. has vitiated the proceedings. 13. As far as the accused Nasir Mohammed is concerned, he has been found guilty by the two courts. The evidence against Sharif Mohammed is the same and the evidence has been discussed and analysed by the Magistrate in the case of both the accused and by the learned Additional Sessions Judge in the case of Nasir Mohammed. However, the witnesses are the same and when their version has been believed then the case against Sharif Mohammed also stands proved. In hearing the petitions under the revisional jurisdiction this court would not go into the evidence unless it can be said that the findings of the courts below are perverse. This is not shown in the present case. However, it can be said that both the accused can be granted probation on good conduct looking to the nature of the offences committed by them. 14. The revision of Rafiq Mohammed is accepted. The order of the learned Additional Sessions Judge holding that cognizance against Sharif Mohammed was irregular and vitiated the proceedings and further sending of the case to the Magistrate is quashed. 15. The revision petitions of Sharif Mohammed and Nasir Mohammed are dismissed as far as the merits of the case are concerned, but are accepted to the extent that the sentence of fine imposed on them is set aside. Instead, both of them are ordered to be released on probation of good conduct, provided they shall enter into bond in the sum of Rs. 2,000/- each with one surety in the like amount to appear and receive sentence when called upon during a period of two years from the date of the submission of the bond and in the meantime to keep the peace and be of good behaviour. One months time is allowed for furnishing the bonds. *******