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Madhya Pradesh High Court · body

2007 DIGILAW 1113 (MP)

Baktawar Singh v. State Of M. P.

2007-10-12

B.M.GUPTA

body2007
ORDER : This revision has been preferred by the petitioners impugning the order dated 25th July, 2005 passed by the Special Judge, Gwalior appointed under section 6 of the Madhya Pradesh Dacoity and Vyapaharan Prabhavit Kshetra Act, 1981 (hereinafter referred to as "the Act"), in Special Case No. 42/2005, whereby the learned judge has taken cognizance against all the eight petitioners under section 190 of Criminal Procedure Code read with section 8 of the Act for the offence punishable under sections 147, 148, 149, 302, 307, 341 and 397 of Indian Penal Code read with section 11/13 of the Act. 2. With regard to the incident happened on 8-2-2005 at about 19:20 hours, one FIR was lodged by the complainant Udaiveer at police station Dabra Distt. Gwalior. The relevant extracts of which are as under :- The names of all the petitioners have been mentioned in the FIR. It was registered at Crime No. 63/05 under sections 341, 307, 302, 147, 148, 149 and 397 of Indian Penal Code along with section 11/13 of the Act against eleven accused persons viz. (1) Baktawar Singh, (2) Palvinder Singh @ Kaka, (3) Narendra Singh, (4) Sukhdev @ Sukka, (5) Binder Singh, (6) Haria @ Hari Singh, (7) Gurulal, (8) Jitendra Singh, (9) Lalla Gadariya, (10) Bhura Gadariya and (11) Mewa Gadariya. During the course of investigation, only one accused Hari Singh was arrested whose remand was taken from the learned Judge (Special Judge) as the case was related to some specified offences under the Act. During pendency of this investigation, an application was moved on behalf of one of the accused persons, on which the investigation was transferred to CID. On perusal of case diary particularly page (parcha) No. 85 dated 2-3-2005, it appears that up to that stage investigation was conducted by Mukesh Kumar Shrivastava SDO (police) Dabra, and statements of Mahip @Teeto, Popa, Raju, Udaiveer and Dharmvir were recorded under section 161 of Criminal Procedure Code. Thereafter on the direction of senior officers of police dated 22-2-2005, it was handed over to Devendra Singh Siroliya D.S.P. (CID) Gwalior. 3. On 28th June, 2005, challan was filed against only four accused persons namely Lalla Gadariya, Mewa Gadariya, Bhura Gadariya and Maan Singh Gadariya which includes three out of aforementioned accused along with one Maan Singh Gadariya as aforesaid, on which special Sessions Trial No. 42/05 was registered. 3. On 28th June, 2005, challan was filed against only four accused persons namely Lalla Gadariya, Mewa Gadariya, Bhura Gadariya and Maan Singh Gadariya which includes three out of aforementioned accused along with one Maan Singh Gadariya as aforesaid, on which special Sessions Trial No. 42/05 was registered. In challan, all the four accused persons were shown absconding, hence statement of investigating officer was recorded, being satisfied, the accused were declared absconding and directed to record evidence in their absence as provided under section 299 of Criminal Procedure Code for which further date 7th September, 2007 was fixed. On the same day, an application under section 190, Criminal Procedure Code was filed on behalf of the complainant Udaiveer. For reply and argument of the application, the case was fixed for 12th July, 2005. The case was adjourned for 2-3 dates on the request of the parties. On 18th July, 2005, it was mentioned on behalf of the State not to file the reply. Arguments on the application were heard and the impugned order was passed on 25th July, 2005. On perusal of this order, it appears that after considering the statements recorded during investigation, legal aspects and the facts of the case, the learned Judge has taken cognizance against the petitioners. Thus, the contention on behalf of the petitioners that without considering the evidence, merely on the basis that petitioners were nominated in the FIR the learned Judge has taken cognizance, appears not correct. 4. On perusal of the first order-sheet dated 8th July, 2005, of the Case No. 16/06 of the Court of the learned Judge, it appears that one application under section 169, Criminal Procedure Code was also filed by the same officer, who filed the challan, on the same date i.e. on 28th June, 2005, with regard to discharge of the accused Hari Singh, who was arrested and was taken on remand. It also appears that on 8th July, 2005, two objection applications supported by their affidavits were filed by witnesses Raju and Popa. In these applications, not only the action taken by the police under section 169, Criminal Procedure Code with regard to accused Hari Singh was objected, but the step of the police, exonerating the other petitioners was also objected. It was specifically mentioned in these applications that these two witnesses have not stated anything before the second investigating officer. In these applications, not only the action taken by the police under section 169, Criminal Procedure Code with regard to accused Hari Singh was objected, but the step of the police, exonerating the other petitioners was also objected. It was specifically mentioned in these applications that these two witnesses have not stated anything before the second investigating officer. Their real statements which were given by them before the earlier investigating officer have not been enclosed with the challan. In the application of Raju, it was also mentioned by him, that he gave statement before the Executive Magistrate supporting the facts of the FIR. One more joint application was filed on behalf of these two witnesses under section 91 of Criminal Procedure Code for calling their earlier statements recorded by the first investigating officer and Executive Magistrate which have not been enclosed with the challan. In nutshell, all these three applications were filed indicating the fact that the statements purported to be given by these two witnesses before the second investigating officer and have been enclosed with the challan, are not their statements, as they have not given any statement before him, but their real statements which were given by them before the first investigating officer and the Executive Magistrate supporting the FIR, have not been filed with the challan are to be called. On perusal of the statements dated 24th May, 2005, of these two witnesses recorded under section 161, Criminal Procedure Code by the second investigating officer, it appears that they are different than their earlier statements dated 13th and 14th February, 2005 given by them and recorded by first investigating officer. In their earlier statements, these two eye witnesses have totally corroborated the facts mentioned in the FIR, while in their subsequent statements, they appear totally different on the point exonerating the petitioners. The earlier statements do not form part of the challan but they are included in the case diary. To be fair on the part of the second investigating officer either he was required to enclose the earlier statements also with the challan or in such a great difference in statements, step under section 164, Criminal Procedure Code was required to be taken by him for recording the statements of these two material eye witnesses before a Magistrate. To be fair on the part of the second investigating officer either he was required to enclose the earlier statements also with the challan or in such a great difference in statements, step under section 164, Criminal Procedure Code was required to be taken by him for recording the statements of these two material eye witnesses before a Magistrate. On this ground, it is contended on behalf of the complainant that on political interference, as mentioned in the aforementioned two applications of witnesses Raju and Popa also, the investigating officer was changed and the second investigating officer did not investigate into the matter impartially. It appears that vide order dated 25th July, 2005 passed on the same date on which the impugned order has been passed, the learned Judge has rejected the application under section 169, Criminal Procedure Code filed by the police/investigating agency, mentioning therein that detailed order (impugned order) has been passed in a Special S.T. No. 42/05. On the same ground, the application has been rejected. 5. On perusal of the FIR, it appears that there are six eye witnesses of the case namely, Udaiveer, Dharamveer, Bunti, Maheep, Raju and Popa. The statement filed with challan of all the first four are supporting the facts narrated in the FIR, which are against the petitioners and statements of Raju and Popa are not against the petitioners. With regard to Raju and Popa, immediately after filing of the challan, they have filed aforementioned applications supported with their affidavits and the status of their earlier statements have been dealt with hereinabove. This is one set of the evidence. The second set of evidence on which Shri Sharma has drawn attention are the statements of Ramesh, Brijlal, Sobaram, Albel Singh, Ranchoda, Kundan Singh, Chironjilal, Balkisan, Lalla Kushwah, Kallu Kushwah, another Balkishan, Cheta, Mansharam, Dattu, Lal Nohemad and Dr. Anil Kumar. Apart from these statements, the statements of Raju and Popa (which are disputed and are consistent as aforesaid) are narrating a different story. As per these statements, the deceased was a man of bad character, he teased one girl of Gadaria family. On account of that, he was beaten to death by four Gadarias and all the four Gadarias are the same against whom the challan has been filed by the second investigating officer. As per these statements, the deceased was a man of bad character, he teased one girl of Gadaria family. On account of that, he was beaten to death by four Gadarias and all the four Gadarias are the same against whom the challan has been filed by the second investigating officer. The statements of these witnesses are in negative with regard to the presence and involvement of the petitioners. 6. Thus, considering the aforementioned status of evidence, the learned Judge has taken cognizance against the petitioners. In aforementioned factual circumstances on merits, the approach of the learned Judge does not appear erroneous, because prima faciely on the first set of six witnesses who have been nominated as eye witnesses in the FIR which has been lodged without any delay, the impugned order appears to be based. What the real truth is, that is to be concluded only during the trial. 7. On behalf of the petitioners much stress has been placed on procedural aspect counting certain irregularities/illegalities for assailing the impugned order and less stress has been given on merits. Keeping the view in mind, the Court has to administer justice mainly on the basis of the merits of the case and not merely on the basis of the technicalities, because the Rules of procedure are hand made of justice and justice should not suffer merely on the technicalities. The merits based on facts have been discussed hereinabove giving priority to them in the order. On hearing the contentions raised on procedural aspects the relevant provisions of the Criminal Procedure Code, as well as, of the Act are required to be quoted hereinbelow, so that the contentions can be appreciated while perusal of the relevant provisions in the order itself. "Section 190 - Cognizance of offences by Magistrate.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class especially 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; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) ..." "Section 193 - Cognizance of offences by Courts of Session.- Except as otherwise expressly provided by this 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 that case has been committed to it by a Magistrate under this Code." "Section 319 - Power to proceed against other persons appearing to be guilty of offence.- (1) 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. (2) to (4) ...." "7. Jurisdiction of Special Courts.- (1) ...... (2) In trying any specified offence, a Special Court may also try any offence other than the specified offence with which the dacoit may, under the Code, be charged at the same trial, if the offence is connected with the specified offence." (Emphasis supplied) "8. Procedure and powers of Special Courts :- (1) A Special Court may take cognizance of any specified offence,- (a) upon receiving a complaint which constitutes such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officer, or upon its own knowledge, that such offence has been committed. (2) A Special Court shall, in trial of a specified offence, follow the procedure provided by the Code for trial of Session cases : Provided that the Special Court may wherever necessary perform the function of a Magistrate under section 207 of the Code and proceed to try the case as if the case had been committed to Court of session for trial under the provisions of the Code. (3) Save as otherwise expressly provided in the Act of provisions of the Evidence Act, 1872 (No. 1 of 1872) and the Code shall, insofar they are not inconsistent with the provisions of this Act, apply to the proceedings before a Special Court and for the purposes of the said provisions of the Code, the Special Court shall be deemed to be Court Session and the person conducting the prosecution before a Special Court shall be deemed to be a Public Prosecutor. (4) and (5)....." (emphasis supplied) 8. On perusal of the aforementioned provisions, it appears that although the Special Court constituted under the Act is a Court of Session, yet it possession the same powers of a Magistrate under section 190 of Criminal Procedure Code with the aid of section 8 of the Act meaning thereby when a challan (report under section 173 of Criminal Procedure Code) is filed before the Special Judge, he can take cognizance of such an offence specified under the Act and summon the accused concerned despite the fact, that the challan has not been filed against him. Before accepting a report under section 169 of Criminal Procedure Code, filed against any of such accused persons who has been nominated as an accused in the F.I.R., registered at the police station for which the investigation was conducted, he is required to hear the complainant, as observed by the Apex Court in the case of Bhagwant Singh vs. Commissioner of Police, 1985(2) SCC 537 which has subsequently been endorsed by the Apex Court in the case of Gangadhar Janardan Mahatre vs. State of Maharashtra and others, 2005 SCC (Cri) 404. For ready reference, the relevant para 9 of the case of Gangadhar Mahatre is quoted hereinbelow - "9. When a report forwarded by the police to the Magistrate under section 173(2)(i) is placed before him several situations 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 either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under section 156(3). 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(1)(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, exercise of his powers under section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in sections 200 and 202 of the Code for taking cognizance of a case under section 190(1)(a) though it is open to him to act under section 200 or section 202 also. (See M/s. India Carat (P) Ltd. vs. State of Karnataka, AIR 1989 SC 885 ). The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard." (emphasis supplied) 9. As indicated above, there is no provision in the Code for issue of a notice in that regard." (emphasis supplied) 9. Admittedly along with the challan, a report under section 169 of Criminal Procedure Code was also filed by the police/investigating agency upon which hearing of Udaiveer who is the complainant was required. It is true that filing of an application under section 190 of Criminal Procedure Code as has been filed in the present case by the complainant, is not provided under section 190 of Criminal Procedure Code or section 8 of the Act, however, as observed by the Apex Court hearing of a complainant was required. Thus, the complainant if required, was entitled to file a protest application against such an action of the police/investigating agency exonerating some or all of the accused persons nominated in the FIR. It is contended on behalf of the petitioners that complainant Udaiveer has no locus standi to file the application under section 190 of Criminal Procedure Code. On technical facet, the contention appears correct, yet in practice, it is there. Filing of such an application, in view of the aforequoted observation neither prejudiced the petitioners, nor debarred the learned judge taking cognizance under the aforementioned legal provisions for which he was empowered. Although such matter was not in dispute before the Apex Court, however, on perusal of the case of Rajendra Prasad vs. Bashir and others, 2001 CAR 485, it appears that on application filed on behalf of the complainant, cognizance was taken and that was upheld by the Apex Court. No observation appears that the complainant was not entitled to file such application. Unlike section 190, section 311, Criminal Procedure Code etc. vest certain powers in Magistrate, filing of applications on behalf of either side though not provided, yet the applications are filed and decided either way. For such provisions it appears suffice to observe, that despite, filing of an application on behalf of either side is not provided/required and a Magistrate is empowered to act even without an application, yet if an application is filed, it creates no bar for a Magistrate using the powers vested in it. As contended on behalf of the complainant, this application can be considered as a protest application if not considered under section 190 of Criminal Procedure Code and mentioning the wrong provisions does not affect the merits of the application. As contended on behalf of the complainant, this application can be considered as a protest application if not considered under section 190 of Criminal Procedure Code and mentioning the wrong provisions does not affect the merits of the application. In fact also this application appears to be in the shape of the protest application against the aforementioned action of the police exonerating the petitioners. The ratio of the observation of the Apex Court in the case of Thakur Ram and others vs. State of Bihar, 1966 Cri.L.J. 700 does not help the contention of the petitioners in this case, as the same is related to section 435 of Criminal Procedure Code, 1898 dealing with the revisional powers of the Court of Sessions. The facts of the case of Thakur Ram were also totally different. When the State was failed thrice in their attempts, one application for revision was filed by a third party, not even the complainant and that was allowed. The Court in those circumstances observed. "In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of section 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the Court's jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matter the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book." But, in the facts and circumstances of the case in hand, the agency representing the State was taking a different step which was against the interest of the complainant. In this case, such expectation from State appears of no avail. Thus, the facts being different, the ratio in aforementioned case, does not help the contention of the petitioners. 10. In this case, such expectation from State appears of no avail. Thus, the facts being different, the ratio in aforementioned case, does not help the contention of the petitioners. 10. As contended on behalf of the petitioners, it is true that the challan was not filed under section 11/13 of the Act but the learned judge has wrongly mentioned in order-sheet dated 28-6-2005 in special S. T. No. 42/2005 that the same has been filed under these provisions also. It appears a non-deliberate mistake on the part of the Judge. It is a sheer mistake because (1) admittedly, initially the FIR was registered for specified offence, under which remand of petitioner Hari Singh was given by the learned judge and in continuation of the same, when the challan was filed such mistake does not appear abnormal. (2) it is a mistake, because on perusal of the impugned order dated 25-7-2005 at its fourth page, the learned judge has observed that the challan has not been filed for any specified offence. Thus, if by mistake that has been mentioned to be filed under section 11/13 of the Act, neither it prejudices the petitioners nor it affects the legality, propriety or correctness of the impugned order which is under consideration before this Court at this stage. 11. This contention on behalf of the petitioners is true that the learned Judge was not empowered to receive challan and take cognizance upon it for the offence punishable under sections 302 and 307 of Indian Penal Code for which the challan was filed, as none of them was a specified offence in the Act. It is further contended in this regard that unless the case was committed, the learned judge was not empowered to take cognizance under the aforesaid two offences of Indian Penal Code as provided under section 193 of Criminal Procedure Code. Had the cognizance was taken by the learned judge for these offences only i.e. under sections 302 and 307 of Indian Penal Code, the contention could have been accepted. But in the instant case, the learned judge has taken cognizance against the petitioners under section 397 of Indian Penal Code along with section 11/13 of the Act also. Had the cognizance was taken by the learned judge for these offences only i.e. under sections 302 and 307 of Indian Penal Code, the contention could have been accepted. But in the instant case, the learned judge has taken cognizance against the petitioners under section 397 of Indian Penal Code along with section 11/13 of the Act also. These offences being specified offences, taking cognizance under these offences along with other offences of Indian Penal Code is not erroneous, as provided under section 7(2) of the Act which empowers a Special Judge that, at the time of trying any specified offence, the Court may also try any offence other than the specified offence with which the dacoity may be charged at the same trial, if the offence is connected with the specified offence. On facts, the offence of sections 302 and 307 of Indian Penal Code and the other offence under section 397 of Indian Penal Code read with section 11/13 of the Act are in same transaction and in same incident. Whether the offence under sections 302 and 307 of Indian Penal Code are in connection of dacoity or otherwise, detailed discussion/observation by this Court is not required at this stage. Thus, although filing of the challan before the learned Judge was erroneous yet retention of the same for deciding the application under section 169 of Criminal Procedure Code filed by the police/investigating agency along with the challan was required. Retention of the same was also required for consideration of the point whether exonerating the petitioners by the investigating agency against whom the allegations were lodged in the FIR and the case was registered under the specified offences was justified or not. Although the attention of the learned Judge was drawn by filing an application under section 190 of Criminal Procedure Code protesting the aforementioned action of the police yet the learned Judge was required to consider the correctness or otherwise of this action of the police for which he was empowered under section 190 of Criminal Procedure Code read with sections 7 and 8 of the Act. When the learned Judge perused the material as a whole and heard the parties, he passed the impugned order. As observed hereinabove, the learned Judge was empowered for taking cognizance against the petitioners. When the learned Judge perused the material as a whole and heard the parties, he passed the impugned order. As observed hereinabove, the learned Judge was empowered for taking cognizance against the petitioners. In that way, merely filing challan by the police before the learned Judge cannot be considered in any way prejudicial to the petitioners. There appears no failure of justice or prejudice to the petitioners by aforementioned mistakes or irregularities nor that could be shown on behalf of the petitioners. Although, in different facts and circumstances, when a case related to an offence of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was tried and accused were convicted without the case being committed by a Magistrate to the Court of Sessions and the case was remanded by the High Court for de novo trial observing this irregularity, the Hon'ble Apex Court has observed in paras 12 and 15 in the case of State of M. P. vs. Bhooraji and others, (2001)7 SCC 679 and the same being relevant is quoted hereinbelow :- "12. Section 465 of the Code falls within Chapter XXXV under the caption, "Irregular Proceedings". The chapter consists of seven sections starting with section 460 containing a catalogue or irregularities which the legislature thought not enough to axe down concluded proceedings in trials or enquiries. Section 461 of the Code contains another catalogue irregularities which the legislative perception would render the entire proceedings null and void. It is pertinent to point out that among the former catalogue contains the instance of a magistrate, who is not empowered to take cognizance erroneously and in good faith. The provision says that the proceedings adopted in such a case, though based on such erroneous order, "shall not be set aside merely on the ground of his not being so empowered." .......... 15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any inquiry were reckoned by the legislature as possible occurrences in Criminal Courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior Court shall not quash the proceedings merely on the ground of such error, omission or irregularity." 12. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior Court shall not quash the proceedings merely on the ground of such error, omission or irregularity." 12. Once the challan was there before the learned Judge in aforementioned circumstances, three courses were available to him (1) to accept the report under section 169 of Criminal Procedure Code including approving the step exonerating the petitioners (2) Not to accept the report under section 169 of Criminal Procedure Code and/or not to approve the step exonerating the petitioners. In the first course, he was to return the challan for filing the same in the appropriate Court. If while adopting the second course, the learned Judge was of the opinion that the petitioners are also liable for taking cognizance under sections 302 and 307 of Indian Penal Code even in that course he was to return the challan for filing the same in the proper Court. But if the learned Judge was to pass the impugned order taking cognizance against the petitioners for the offences including the specified offences, undoubtedly he was empowered for the same. In support of this, the observation of the Apex Court in the case of Gangadhar Mahatre can be seen. 13. It is also the contention on behalf of the petitioners that once the learned judge had taken cognizance against the four accused persons for whom the challan was filed on 28-6-2005, he was not competent to take cognizance vide impugned order on a subsequent date i.e. 25-7-2005. After passing the order on 28-6-2005, he was to wait up to the stage of section 319 of Criminal Procedure Code. The contention is rightly countered on behalf of the complainant on the grounds that the application under section 190 of Criminal Procedure Code was filed on the same day when the challan was filed. As with regard to the same, time was required to be given to the opposite party for filing reply, the same was given a thereafter when filing reply was denied, arguments were heard and the cognizance has been taken vide impugned order. Till then the application under section 169 of Criminal Procedure Code filed on behalf of the petitioners was also remained pending. Till then the application under section 169 of Criminal Procedure Code filed on behalf of the petitioners was also remained pending. Both the applications have been decided by the learned judge on one day by two different orders in two different proceedings. However, the application under section 169 of Criminal Procedure Code has been rejected on the same observation given by him in the impugned order. It is also rightly contended on behalf of the complainant that cognizance is always to be taken of the offence and not of the offender. Once the cognizance was taken by the learned judge on 28-6-2005 against some of the accused persons for whom the challan was filed, he was not prevented by that action from taking subsequent cognizance under section 190 of Criminal Procedure Code read with section 8 of the Act against the petitioners on a subsequent date. Because, all the three things (i) filing of challan, (ii) filing of application under section 169 of Criminal Procedure Code, and (iii) filing of application under section 190 of Criminal Procedure Code were happened on 28-6-2005. For this contention the learned advocate for the complainant has placed reliance on the judgment of the Apex Court in Swil Ltd. vs. State of Delhi and another, 2001 SCC (Cri) 1205 in which Hon'ble Court has observed in paras 6 and 7 quoted hereinbelow. "6. In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of section 190, Criminal Procedure Code would be applicable. Section 190 inter alia provides that 'the Magistrate may take cognizance of any offence upon a Police report of such facts which constitute an offence'. As per this provision, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under section 204, Criminal Procedure Code is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the Police Officer and other documents tendered along with charge-sheet. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the Police Officer and other documents tendered along with charge-sheet. Further, upon receipt of Police report under section 173(2), Criminal Procedure Code, the Magistrate is entitled to take cognizance of an offence under section 190(1)(b) even if the Police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts merging from the investigation by taking into account the statement of the witnesses examined by the Police. At this stage, there is no question of application of section 319, Criminal Procedure Code. Similar contention was negatived by this Court in Raghubans Dubey vs. State of Bihar, (1967)2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri.L.J. 1081 by holding thus (para 9 of AIR, Cri.L.J.) : "In our opinion, once cognizance has been taken by the Magistrate he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are 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 part of the proceeding initiated by his taking cognizance of an offence." 7. Further, in the present case there is no question of referring to the provisions of section 319, Criminal Procedure Code. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under section 2(g), Criminal Procedure Code nor the trial had started. He was exercising his jurisdiction under section 190 of taking cognizance of an offence and issuing process. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under section 2(g), Criminal Procedure Code nor the trial had started. He was exercising his jurisdiction under section 190 of taking cognizance of an offence and issuing process. There is no bar under section 190, Criminal Procedure Code that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet." (Emphasis supplied). This is the complete reply of the contention raised on behalf of the petitioners. 14. The judgment cited on behalf of the petitioner in Moly and another vs. State of Kerala, 2004(4) SCC 584, Vidyadharan vs. State of Kerala, 2004(1) SCC 215 , Gangula Ashok and another vs. State of Andhra Pradesh, 2000(2) SCC 504 are on the point that a Special Court, cannot take cognizance of a case without the same being committed to it, in view of the provisions of section 193 of Criminal Procedure Code. This contention has been dealt with hereinabove that with the aid of section 8 of the Act, committal of a case to the Court of learned Judge was not required. The contention is true on the point that the special Court cannot take cognizance of such offences which are not specified offences, unless the case is committed to it. These three judgments are related to such a special judge appointed under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Admittedly, in that Act the special Court was not given powers to take direct cognizance, as the same is given under section 8 to the special Court constituted under the Act. In view of this difference, the powers of the learned judge in the present case are different than the special judges constituted under the aforesaid Act of 1989. Similar difference can be mentioned with regard to the fourth judgment cited on the point in Jagdish Prasad Gupta vs. State of Rajasthan and others, 1995 supp. (3) SCC 386 in which the provisions of section 12(a) of the Essential Commodities Act, 1955 were involved. 15. Similar difference can be mentioned with regard to the fourth judgment cited on the point in Jagdish Prasad Gupta vs. State of Rajasthan and others, 1995 supp. (3) SCC 386 in which the provisions of section 12(a) of the Essential Commodities Act, 1955 were involved. 15. The judgment of a Full Bench of this Court in Gulab Chand vs. State of M. P., 1982 JLJ 170 has been cited on the point that no specified offence is made out in the facts and circumstances of this case, because as per the facts primarily the intention of the assailants has been alleged to commit the murder and not to commit the dacoity. The stage of taking cognizance in present case is a very initial stage. As per the allegations, the offence of murder, attempt to commit murder and loot/robbery related to the property of a gun and cell phone was committed. At the time of committing such robbery, involvement of five or more persons has been alleged. At the time of the incident, the assailants were having deadly weapons. As defined in section 391 of Indian Penal Code, the alleged act squarely covered under the definition of dacoity and punishable under sections 395 and 397 of Indian Penal Code. For the contention as raised that the main intention was to commit murder and not to commit dacoity, presently the stage is for taking cognizance for issuance of process against the accused persons. Any fine observation on this point by this Court is not required, as the same may affect an independent approach of the learned trial Judge at the time of framing of the charge. It is suffice to observe that for committing dacoity, murder or attempt to commit murder can be presumed but not vice versa. 16. The judgment in Ranjit Singh vs. State of Punjab, (1988)7 SCC 149, Joginder Singh and another vs. State of Punjab and another, 1979(1) SCC 340 and Kishori Singh and others vs. State of Bihar and another, 2006(1) SCC (Cri.) 275 have been cited on the point, that for taking subsequent cognizance vide impugned order, evidence during trial was required, as provided under section 319 of Criminal Procedure Code. But, in the present case the situation is different. In view of the insertion of section 8 of the Act the learned judge has been invested with the powers of the Magistrate taking cognizance. But, in the present case the situation is different. In view of the insertion of section 8 of the Act the learned judge has been invested with the powers of the Magistrate taking cognizance. In view of that provision, the Special Judge can take cognizance under section 8 of the Act without the case being committed to it, as such the facts being different the ratio in these cases is not applicable to the present case. Judgment in State of West Bengal and another vs. Mohd. Khalid and others, (1995) 1 SCC 684 has been cited on the point that the cognizance is always taken of offences of a case, and not of the offenders and for taking cognizance, reasoned order is required to be passed. As observed hereinabove the impugned order does not appear erroneous on this point. So long as the provisions of sections 7 and 8 of the Act are a part of the Act, the ratio in the judgments cited on behalf of the petitioners does not help the contentions of the petitioners. 17. In view of all, the impugned order does not appear erroneous with regard to its correctness, legality or propriety. Hence, the revision is dismissed.