JUDGMENT 1. - Both these petitions under section 482 Criminal Procedure Code are directed against the same orders and seek same relief. These were therefore, heard together and are hereby disposed of by this common order. 2. Counsel for the parties were heard and the record of the lower courts was gone through. For the reasons recorded hereinafter the impugned order are found bad in law amounting to abuse of the process of the court of Chief Judicial Magistrate, Bharatpur and are set aside and the proceedings quashed. 3. On April. 16, 1978 Giri Raj s/o. Shri Jai Ganesh of Bharatpur loaded 560 oil tins on Truck No. PUS 7105 being plied by M/s. Super Golden Transport Company, Bharatpur with whom the petitioner worked as Manager. The goods was to be delivered to a party at Darbanga. The goods did not reach there. The party at Darbanga complained on 25/26-4-78 to Giriraj of non-receipt of the goods. Giriraj sent a written report dated 6.5.76 (sic 78) to Police Station Kotwali whereupon Crime No. 211 for offence under Section 406, 379 Indian Penal Code was registered. On investigation it was found that the goods was dishonestly sold at Hathras. Thirteen persons were found involved in the commission of offences under Sections 379, 406, 420 and 120-B Indian Penal Code. Three were arrested and ten absconded. The police submitted a report under Sections 170/173 Criminal Procedure Code against all the thirteen persons including the ten absconders against whom the report was submitted under section 173 read with s. 299 Criminal Procedure Code. The present petitioner was cited as a prosecution witness at serial No. 20 in the chargesheet as originally filed. After arrest of four of the absconders a supplementary charge-sheet was filed later on. The Original report under section 173 was filed on 5-1-79 and the learned Magistrate directed for delivery of documents under section 173 Criminal Procedure Code to the accused persons. The supplementary charge-sheet was filed as late as on 26-8-85 and the case was adjourned to hear the parties on framing of charge. on 15-3-1986 the learned Magistrate, on perusal of the record, came to know that no specific order taking cognizance of any offence against any of the accused had been passed. He, therefore, took cognizance of the offences under Sections 420/411/120-B Indian Penal Code against the accused persons as had been challaned by the police. on 15-3-1986 the learned Magistrate, on perusal of the record, came to know that no specific order taking cognizance of any offence against any of the accused had been passed. He, therefore, took cognizance of the offences under Sections 420/411/120-B Indian Penal Code against the accused persons as had been challaned by the police. At the same time the learned Magistrate formed the opinion that the present petitioner, who, as stated above, had been named as a prosecution witness in the report under section 173 Criminal Procedure Code filed on 5-1-79 was also involved in the commission of the offences under Sections 420/120-B Indian Penal Code. He took cognizance of those offences against the petitioner accordingly and directed to array him as co-accused in the case. Such order of the learned Magistrate against the petitioner was confirmed in revision under section 397 Criminal Procedure Code by the learned Sessions Judge. Hence these petition under section 482 Criminal Procedure Code.3A. Mr. Naqvi, the learned counsel for the petitioner urged that since the report under section 173 Criminal Procedure Code had been submitted by the police long back on 5-1-79 and the learned Magistrate had even delivered the copies of the documents under section 173 Criminal Procedure Code to the accused person cognizance of the case would he deemed to have been taken by the learned Magistrate as back as on 5-1-79 and, therefore, he could not have reviewed his earlier order, taking cognizance of the offence in this case, on 15-3-86. The argument advanced is misconceived and has to be rejected. 4. On submission of the police report under section 173 Cr. P.C. on 5-1-1979 the learned Magistrate was required to take or not to take cognizance of the case under section 190(1)(b) Criminal Procedure Code. On that day the learned Magistrate had directed registration of the case and for delivery of the documents under section 173 Criminal Procedure Code to the accused persons. The question of delivery of the copies of the documents submitted by the police alongwith its report under section 173 could have arisen after the cognizance of the case was taken by the Magistrate against the accused persons. Therefore, the order passed by the learned Magistrate on 5-1-79 can be read as an order taking cognizance of the case by him against the accused persons. Therefore, the order passed by the learned Magistrate on 5-1-79 can be read as an order taking cognizance of the case by him against the accused persons. But that order was not a speaking order on the point of taking cognizance of any offence against any of the.accused persons. In that respect the said order was totally a vague and silent order. But since copies of the documents under section 173 were directed to be given to the accused by and were actually given under that order it may be impliedly taken as an order taking cognizance of the case by the Magistrate on that day. On 15-3-86 what the learned Magistrate had done was simply to clarify the position and remove the confusion which was or could have been there on the point of taking cognizance of the case. The order dated 15-3-86 was thus clarificatory in nature and not an order reviewing the earlier order dated 5-1-79. Such orders may be necessitated under the circumstances of given case and are interlocutory in character as their purpose is to remove the confusion in order to make progress in the case. Orders of such nature which are required to be passed to remove ambiguity and confusion in or relating to orders already passed do not have the character of the orders passed in exercise of reviewing powers which the Code of Criminal Procedure 1973 does not confer on the criminal courts. The order dated 15-3-86, as passed by the learned Magistrate in this case, does not have the character of an order passed in exercise of any reviewing powers and thus the same cannot be assailed on that ground. 5. It was next urged by Mr. Naqvi that since the present petitioner was neither named as an accused in the First Information Report nor in the report submitted under section 173 Criminal Procedure Code. By the police, instead he was cited as a prosecution witness in the list of witnesses filed alongwith the report under section 173 the Magistrate could not have taken cognizance under section 190(b) against him on the basis of report -/s 173 Criminal Procedure Code. By the police, instead he was cited as a prosecution witness in the list of witnesses filed alongwith the report under section 173 the Magistrate could not have taken cognizance under section 190(b) against him on the basis of report -/s 173 Criminal Procedure Code. The learned counsel further submitted that in any case there was no iota of evidence in the report and other papers filed by the police against the petitioner and, therefore, no cognizance of any offence could have been taken by the learned Magistrate against the petitioner. In support of his contentions Mr. Naqvi relied upon the decision of this court in Israil & Ishaq v. State of Rajasthan & ors., 1986 RCC 308. 6. The learned Public Prosecutors, however, submitted that on the basis of the police report submitted by the police under section 173 Criminal Procedure Code the learned Magistrate was competent and empowered to take cognizance of the offence against such person or persons also who were not challanned by the police. They further submitted that irrespective of the fact whether the petitioner was named or not named as accused either in police report under section 173 or in the First Information Report he could have been summoned as an accused in exercise of the powers under section 319 Criminal Procedure Code vested in the Magistrate. 7. Section 190(1)(b) empowers a Magistrate to take cognizance of offence and summon the offendor as an accused in the case. Such power may be exercised by the Magistrate on a positive report submitted under section 170/173 or a negative report under section 169 Criminal Procedure Code. The Magistrate is not bound to accept the police report whether submitted under section 169 or under section 173 Criminal Procedure Code. Where the police has submitted a composite report i.e. partly positive and partly negative the Magistrate may reject the positive report in full or in part and may take cognizance of the offence on the negative report and direct that the person(s) whether named in the F.I.R. or not but not charge-sheeted by the police be put up on trial. The Magistrate may act in either of the ways and cognizance taken by him in any of the ways would be cognizance taken under section 190(1) (b) on a police report. The Magistrate may act in either of the ways and cognizance taken by him in any of the ways would be cognizance taken under section 190(1) (b) on a police report. But where such report and the documents submitted alongwith such report do not disclose the commission of any offence by the person not challanned by the police the Magistrate would not be justified to summon such a person. In this respect I fully agree with the decision cited by the learned counsel for the petitioner. 8. In the instant case it is not in dispute that the present petitioner was named as an accused neither in the F.I.R. nor in the report under section 173 Criminal Procedure Code. It could also not be disputed by the learned prosecutors that there was no iota of incriminating evidence in the documents submitted by the police alongwith its report under section 173 Criminal Procedure Code. There was thus no material before the learned Magistrate to have taken cognizance of the offences under section 420, 120B Indian Penal Code against the petitioner under section 190(1)(b) Criminal Procedure Code. In his order the learned Magistrate has referred to no evidence available against the petitioner in the police report and the documents submitted alongwith it. The learned Magistrate had acted on his own surmises and conjectures and directed summoning of the petitioner as a co-accused in the case. On the face of it the order passed by the learned Magistrate is bad in law. 9. The order passed by the learned Magistrate cannot be supported with reference to the provisions contained in section 319 either. The word 'evidence' occurring in the language of section 319 means evidence on record and the power under that section cannot be exercised with reference to police papers. The power can be exercised only if it appears from the evidence "recorded" by the court in the course of enquiry or trial of the case that any person, not sent up by the police for trial, has committed an offence. It is well settled position of law that the powers under section 319 are extraordinary powers and should be very sparingly used only for compelling reasons. It is well settled position of law that the powers under section 319 are extraordinary powers and should be very sparingly used only for compelling reasons. In the instant case neither the police papers, as stated above, disclosed commission of any offence by the petitioner nor any evidence was recorded by the learned Magistrate at the trial of the case disclosing commission of offences under section 420/120B by the petitioner. In any case the impugned orders are bad in law and disclose abuse of the process of the court. 10. The sum up the orders passed by the learned Magistrate on 15.3.86 and by the learned Sessions Judge on 28.1.93 confirming the order of the Magistrate are set aside and the cognizance taken against the petitioner for offences under section 420/120B Indian Penal Code and the proceedings against him are quashed. The petitions are allowed.Petitions allowed. *******