JUDGMENT 1. - All these three petitions under Section 482 Cr.P.C. have common origin and identical facts. These were heard together and are now disposed of by this consolidated order. The main order shall be placed on the record of S.B. Cr. Misc. Petition No. 547/99 and copy thereof on the record of each of the other two cases. 2. The relevant facts in all the three petitions are as under: 1. S.B. Cr. Misc. Petitions No. 547/99 : In this case Mst. Sita Sharma, respondent No. 2 lodged a written report at police station, Bassi district, Jaipur alleging therein that she had been serving with the Bal Rashmi Society (an educational society) since 1989; that Smt. Alice Garg, the petitioner was the Incharge of the said Society, that some 5 or 6 years back the students of the society were sent to participate in the tournaments held at Goondi, Ahmedabad (Gujarat) and the informant along with other members of the staff had accompanied the students to Goondi; that at Goondi three members of the staff, namely Abdul Sattar, Sita Ram and Satya Narain committed rape on her; that on her return to Bassi she had although complained of the misdeeds of the colleagues to the petitioner but she paid no heed to her complaint and instead around the Holi festival of the year 1994 the informant, under threat, coercion and under influence of the petitioner, had to offer herself to be subjected to sexual intercourse certain guests of the petitioner. On the basis of such written report crime No. 420/98 Under sections 376, 384 r.w. section 120-B IPC was registered at the said police station against the petitioner and others. After investigation of the case the police submitted its report under section 173(2) Cr.P.C. on 5.11.1998 as against Abdul Sattar, Sita Ram and Satya Narain, afore-mentioned. However, investigation, as against the present petitioner was kept pending under section 173(8) Cr.P.C. The learned Magistrate had though taken cognizance of the aforesaid offences on the basis of the police report submitted before him, yet he did not commence committal proceedings until receipt of the further report of the police under section 173(8) Cr.P.C. as against the present petitioner. However, investigation, as against the present petitioner was kept pending under section 173(8) Cr.P.C. The learned Magistrate had though taken cognizance of the aforesaid offences on the basis of the police report submitted before him, yet he did not commence committal proceedings until receipt of the further report of the police under section 173(8) Cr.P.C. as against the present petitioner. The additional or supplementary report under section 173(8) Cr.P.C. was although a negative report as against the present petitioner but the learned Magistrate summoned the present petitioner as an additional accused in the case to answer the accusation for offences under sections 376, 384 r.w. section 120-B IPC vide his impugned order dated 25.5.99. That order of the learned Magistrate has been challenged in the present petition on the ground of want of jurisdiction to the Magistrate to summon an additional accused at the stage of Section 209 Cr.P.C. in a case involving offence exclusively triable by court of Sessions. 2. S.B. Cr. Misc. Petition No. 548/99 In this case Smt. Krishna lodged FIR No. 492/98 on 16.9.98 with the same police station Bassi stating therein that her sister Smt. Radhika Alias Ratna was married with one Dharmender and was living with him at Delhi; that 1 on having received the information to kill Radhika by sprinkling kerosene on her, she brought her to Jaipur for treatment; that during her stay in S.M.S. Hospital, Jaipur, Radhika told the informant that while she (Radhika) was employed in Bal Rashmi Society, Bassi as aforementioned the co-employees 5 namely Abdullah, Dharmender (aforesaid husband of Radhika), Nirmal Godha, Om Prakash and others repeatedly commit rape on her. After investigation of the case the police submitted their report under section 173(8) Cr.P.C. for offence under section 376 IPC on 14.12.98 as against Dharmendar only and kept the investigation pending as against others; that on 22.5.99 the police i submitted a negative report in respect of other persons (who are petitioner Nos. 1 to 7 in the present petition); that though the learned Magistrate had already taken cognizance of the offence under section 376 IPC and had proceeded under section 209 Cr.RC. as against Dharmender accused yet on submission of the negative report by the police in respect of the petitioner the 1 learned Magistrate summoned them as additional accused in the case for offences under section 307, 327, 376 r.w. Section 120-B IPC. as against Dharmender accused yet on submission of the negative report by the police in respect of the petitioner the 1 learned Magistrate summoned them as additional accused in the case for offences under section 307, 327, 376 r.w. Section 120-B IPC. The order dated 24.5.99 passed by the learned Magistrate in that behalf has been challenged on the same ground of want of jurisdiction to the learned Magistrate to so summon the petitioners as additional accused' in the case at the stage of s proceedings under section 209 Cr.P.C. 3. S.B. Cr. Misc. Petition No. 735/99 In this case Smt. Gyarsi Devi (respondent No. 2) filed on 11.8.98 a complaint in the court of the learned Magistrate at Bassi against Smt. Alice Garg, petitioner and one Mool Singh for offences under sections 376, 420 r.w. : section 120-B IPC. It was alleged in the said complaint that some four years back when she and Mool Singh aforesaid were employed in the institution run by the petitioner under the auspices of Bal Rashmi Society, Bassi, Mool Singh had taken her to the petitioner's residence in connection with borrowing of some loan; that the petitioner got some documents prepared by her: that two days after she was again called by the petitioner at her residence and was asked.to go inside a room; that when she went in that room two unknown persons caught hold of her and raped her; that after coming out of the said room Mool Singh aforesaid took her to another room and raped her; that the petitioner and Mool Singh aforesaid had threatened her with dire consequences in case she narrated the incident to any body else and hence she did not tell the incident to any other person. This complaint was forwarded under Section 156(3) Cr.P.C. by the learned Magistrate to the police station Bassi for investigation. At the police station FIR No. 429/98 under sections 376, 420 r.w. section 120-B IPC and 3 SC/ST act was registered and investigation was commenced. In the course of investigation the statements of Smt. Gyarsi Devi were recorded under section 161 and 164 Cr.RC. Later on Smt. Gyarsi Devi and her husband Sh. At the police station FIR No. 429/98 under sections 376, 420 r.w. section 120-B IPC and 3 SC/ST act was registered and investigation was commenced. In the course of investigation the statements of Smt. Gyarsi Devi were recorded under section 161 and 164 Cr.RC. Later on Smt. Gyarsi Devi and her husband Sh. Radhey Shyam filed their affidavits wherein they deposed that the complaint had been filed by Smt. Gyarsi Devi on being coerced and unduly influenced by certain persons who wanted to defame and destroy the reputation of Smt. Alice Garg and the institution being run by her and that no rape was ever committed by any person on Smt. Gyarsi Devi. After collecting other evidence also the police concluded that no offence was committed in the case. The police, therefore, submitted a negative report on 30.7.99 in respect to the petitioner and Mool Singh aforesaid though notice regarding submission of a negative police report in the case had been given to the informant complaint Smt. Gyarsi Devi, respondent No. 2 yet she filed no protest petition against such report. However, the learned Magistrate, vide his impugned order dated 3.8.99 took cognizance of offences under sections 376, 420, 384, 385 r.w. section 120-B IPC and section 3 (i)(x)(xi) of the SC/ST Act, 1989 and summoned Alice Garg petitioner and Mool Singh aforesaid as accused through non-bailable warrants of arrests. Further, he was of the opinion that the investigating officer had wrongly taken into consideration the affidavits of Smt. Gyarsi and her husband Radhey Shyam in contravention of section 3 of Evidence Act and also did not interrogate the persons who had allegedly exercised undue influence upon them for getting the complaint filed by Smt. Gyarsi in the court and had thus committed gross error. He therefore, directed the Director General Police, Rajasthan, to hold a disciplinary enquiry against the investigating officer Sh. R.P Srivastava and called for the compliance report from him by 30.8.99. This order of the learned Magistrate dated 3.8.99 has been challenged mainly on the ground that there was absolutely no material before the learned Magistrate in the negative police report and the documents submitted along therewith to hav6 taken cognizance of any offence and summoned the petitioner and Mool Chand aforesaid as accused thereunder and that he had simply been unjustifiably and illegally led by extraneous considerations in making his order in that way. 3. 3. I heard the learned counsel for the parties at length and carefully considered the material placed before me. 4. In all the three petitions the orders taking cognizance of certain offence and summoning the petitioners as accused thereunder were challenged. An order of taking cognizance of an offence can be revised by the revisional court including this court in exercise of the powers under section 397 Cr.P.C. All the three petitions are therefore, required to be registered as applications under section 397 Cr.P.C. The normal practice adopted by this court in the matter of revision application is that undoubtedly the revisional jurisdiction of this court under section 397 Cr.P.C. is concurrent with that of the Sessions Judge but in order to maintain and respect the hierarchy of courts the aggrieved party should first approach the Sessions Judge against the revisable order of the Magistrate so that in case of reversal of Magistrates order by the Sessions the aggrieved party may approach in revision under Section 397(3) Cr.P.C. before this court against the revisional order of the Sessions Judge. I would have therefore, transferred these petitions to the Sessions Judge concerned for disposal under Section 397 r.w. Section 399 Cr.P.C. But after hearing the learned counsel for the petitioner at the time of issuing notice to the respondent and on going through the impugned order at that time I felt satisfied that these cases do not simply challenge the legality and validity of the orders passed by the learned Magistrate but in fact highlight the abuse of process of his court by the learned Magistrate by adhering to and following certain wrong notions about the power of the Magistrate under Section 190 Cr.P.C. in respect to offences exclusively triable by courts of Sessions. I, therefore, entertained these petitions in order to place correct legal position before the Magistracy in the State. 5. In so far as S.B. Cr. Misc. Petition No. 547 and 548 of 1999 are concerned the common question arising therein is whether the learned Magistrate was justified in law in summoning the present petitioner as an (additional) accused in the case on the basis of the police report which was positive as against the other accused named as such in the report submitted under Section 173 Cr.P.C. but negative qua the petitioner. It is well settled in law that a Magistrate is fully competent to take cognizance of an offence on the basis of a police report which may be wholly positive as per section 170 Cr.P.C. or wholly negative as per Section 169 Cr.P.C. But what about his powers if the police report is partly positive qua some persons and partly negative qua others? And if he has power to summon such other person or persons, who have not been mentioned as accused in the police report as additional accused in that case, then what should be the procedure to be adopted by him? Can he directly summon such other person or persons as additional accused on the basis of the police report, which is partly positive and partly negative or is he required to follow some procedure before directing the summoning of such other persons who were not challenged by the police? Again this question has to be considered with reference to the nature of offence alleged to have been committed in the case. 6. A Magistrate may take cognizance of an offence either on a complaint or a police report, which may be positive or negative or upon information received from any person other than a police officer or upon his own knowledge of the commission of an offence (S. 190). For taking cognizance of an offence on the basis of a complaint he has to follow the procedure laid down in chapter XV and XVI of the Code of Criminal Procedure, 1973. In order to enable the Magistrate to take cognizance on the basis of a 'police report' there must be such a report before him having been forwarded to him by the police officer under Section 170/173 Cr.P.C. As stated above such report may be wholly positive or wholly negative or partly positive and partly negative. If it is a wholly positive or wholly negative police report it presents no problem to the Magistrate in taking cognizance on it. If it is a wholly positive or wholly negative police report it presents no problem to the Magistrate in taking cognizance on it. He may take cognizance of such offence as is disclosed by the report and the documents submitted therewith to have been committed and proceed against such persons as have been reported in the report under Section 173(2) to be concerned with the commission of such offence or, if it is a negative report, summon such persons as accused thereunder who are found to be concerned with the commission of such offence. However, some problem arises when the police report is partly positive and partly negative. Herein the Magistrate is required to keep in mind two factors, one the nature of offence which is reported to him by the police to have been committed in the case and two the procedure he is required to follow. 7. A Magistrate is said to have taken cognizance of an offence when he applies his mind to the facts, as placed before him, constituting the alleged offence. At the time of applying his mind to the facts in order to enable himself to take cognizance of the alleged offence and to summon such persons as accused thereunder who are found to be concerned with the commission of such offence he may, at the time of taking cognizance of the alleged offence, summon all such persons including those who are not mentioned as accused in the police report but whose complicity in the commission of offence is disclosed by the material submitted along with the police report, as accused in the case. That can be done by him at the time of taking ocgnizance of the offence as per police report. However, if the Magistrate, after taking cognizance of the offence, has proceeded in the case against those persons only who were mentioned as accused in the police report under section 173(2) Cr.P.C. but if in the course of inquiry into or trial of an offence it appears to him 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 he may proceed against such person for the offence which he appears to have committed (Sec. 319). For the purpose of proceeding under Section 319 Cr.P.C. evidence means the statements of the witnesses as recorded by him/court and such statements do not include the statements recorded by police under section 161 Cr.RC. That is the procedure to be followed by him in the cases which are triable by him. 8. The procedure pointed about above get somewhat modified in the case of offences exclusively triable by the court of Sessions. In such cases the powers of the Magistrate are quite limited on receipt of the police report regarding the commission of offences including offence exclusively triable by Court of Sessions the Magistrate is now simply required to satisfy himself that the copies of the documents submitted along with the police report under Section 173 Cr.P.C. have been supplied to the accused (Sec. 207) and then to commit the case to the Court of Sessions (Sec. 209). He has no more to do in such cases. Whatever has to be done in that case, whether to frame a charge (Sec. 228) or to discharge the accused (Sec. 227) or to tone down the offence and require the Chief Judicial Magistrate to try the accused on the charges for the offences which are not exclusively triable by the court of Sessions but are triable by the Chief Judicial Magistrate (Sec. 228), or to summon such other person as accused, not being an accused challaned by the police, who appears from the evidence to have complicity in the commission of the offence for which he/they may be tried together with the accused in the case (Sec. 319) has to be done by the Sessions Court. Thus in the case involving offences exclusively triable by the court of Sessions, summoning any person, not being an accused in the case, as an additional accused in the case is now the function of the Sessions Judge and is not within the competence of the Magistrate. Thus in the case involving offences exclusively triable by the court of Sessions, summoning any person, not being an accused in the case, as an additional accused in the case is now the function of the Sessions Judge and is not within the competence of the Magistrate. Under the amended provisions of Section 207-209 of the Code of Criminal Procedure the function of the Magistrate in a case instituted on police report for offence exclusively triable by court of Sessions, stands restricted to the act of simply committing the case, after complying with the provisions of Section 207 or Section 208, as the case may be, to the court of Sessions subject to the provisions relating to bails, send the record of the case to that Court and notify the commitment to the Public Prosecutor. 9. The question relating to the powers of the Magistrate under Sections 207-209 Cr.P.C. fell for the consideration of their Lordships of the Supreme Court in the case of Raj Kishore Prasad v. State of Bihar & Anr., ( AIR 1996 SC 1931 ) and their Lordships clarified the legal position in the following words : "Can a Magistrate undertaking commitment under Section 209 Cr.P.C. of case triable by a Court of Sessions, associate another person as accused, in exercise of power under Section 319 of the Code of Criminal Procedure, or under any other provision, is the significant question which crops up for consideration in this appeal." 10. After discussing the relevant provisions in the Code of Criminal Procedure their Lordship laid down the position of law on the subject in Para 11 in the following words : It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Sessions is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Sections 207 and 208 of the Code of Criminal Procedure. The role of the Magistrate thus is only to see that the package sent to the Court of Sessions is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of 'inquiry' as defined in Section 2(g) of the Code of Criminal Procedure, which defines that 'inquiry' means every inquiry other than a trial conducted under this code by a Magistrate or a 'Court' because of the prealude of its being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Sessions." 11. With the above pronouncement by the Apex Court it is well settled that a committing Magistrate cannot now either add to or substract from the list a person as accused who was challaned or not challaned, as the case may be by the police. Therefore, the impugned order of the learned Magistrate in summoning the petitioner as accused in the case to which the provisions of Section 209 Cr.P.C. were admittedly applicable, was bad in law in as much as it was against the legal position laid down by the Apex Court in Raj Kishore's case (supra). 12. Even on facts too in all the three cases, I find that there was no prima-facie material before the learned Magistrate to have summoned the petitioner(s) as additional accused in the case. The police, after through investigations of the offences alleged to have been committed in the case, had found no role therein of the present petitioner(s). The documents submitted along with the police report thus corroborated the conclusion arrived at and stated by the police in such reports. The police, after through investigations of the offences alleged to have been committed in the case, had found no role therein of the present petitioner(s). The documents submitted along with the police report thus corroborated the conclusion arrived at and stated by the police in such reports. The informants, despite notice of submission of final reports (negative) by the police had filed no protest petitions against such negative reports. The learned Magistrate had not examined them under Section 200 and their witnesses, if any, under Section 202 Cr.P.C. so as to bring on his record evidence contrary to that available in the negative police reports and the documents submitted therewith. The aggrieved persons had filed no other private complaints so as to attract the provisions of Section 210 Cr.P.C. to these cases. There was thus absolutely no other evidence apart from what was there in the police reports (negative) and the documents submitted therewith, in order to enable him to summon the petitioner(s) as additional accused in these cases. It seems to me that the change in political administration in the State, of which the learned Magistrate has made specific reference in his impugned orders, has influenced his opinion. Such extraneous considerations unless they are obviously relevant to and material for exercise of judicial discretion in a case and may be legally referred to, cannot be allowed to dictate judicial orders. Judicial Orders are required to be based on concrete material on record and not on assumptions, presumptions, surmises and conjectures. Inferences are to be drawn from facts brought and established on record and not from ones own points of view or notion held about a particular fact 13. In the result, I hold that the impugned orders in all the. three petitions, summoning the petitioner(s) as additional accused In the cases involving offences exclusively triable by court of Sessions, are set-aside and the proceedings against the petitioners quashed. The learned Magistrate is directed to proceed with these inquiry cases pending before him in accordance with the relevant provisions of law and in the light of the observations made and opinion expressed herein above. The impugned orders qua the petitioner(s) in all the three cases shall be considered as cancelled for the purposes of committal proceedings. 14. All the three petitions are disposed of in the manner stated above. *******