JUDGMENT 1. - This criminal revision petition under Section 397/401 Criminal Procedure Code is directed against the order dated 21.1.2006 passed by the learned Civil Judge (Junior Division) and Judicial Magistrate No. 3 Alwar in Criminal Case No. 23 of 2006 whereby he has dismissed the application filed by the prosecution under Section 169 Criminal Procedure Code and has taken cognizance for offences under Sections 147, 148, 149, 323, 324, 307 and 302 Indian Penal Code against the petitioners. 2. The relevant facts bereft of elaborate details but essential for the disposal of this petition are that complainant Assen Khan lodged a report at Police Station Ramgarh on 16.10.2005 against petitioners and others with the allegation that at 6.30 p.m. on 16.10.2005 he along with others were coming after the Namaj. The accused persons including the petitioner were sitting near the shop of Lallu who fired at Rajjak with his gun. Then, petitioner Bashir Khan fired at him. Accused Mohar Singh fired at Khurshid. Kamruddin also fired at Khurshid and Hussain Khan fired from his 12 bore country made pistol at Jacom. Mehboob and Pappu gave pharsi blows to Islam. They also struck pharsi blows to deceased Rajjak and Khurshid. Pappu and Sharif gave lathi blows to him. On the basis of the aforesaid report F.I.R. No. 281/2005 came to be registered at Police Station Ramgarh and after investigation charge sheet was filed against other accused persons along with an application under Section 169 Criminal Procedure Code for release of the petitioners stating that they were not found involved in the occurrence but the learned Magistrate dismissed the said application in view of the materials on record and took cognizance against petitioners as well vide impugned order which is under challenge in this revision petition. 3. Learned counsel appearing for the petitioners has contended that the learned Magistrate has committed illegality in rejecting the application under Section 169 Criminal Procedure Code and taking cognizance against the petitioners in a routine and mechanical manner without there being any solid materials on record against them. He has also submitted that the learned Magistrate had no jurisdiction and was not empowered to take cognizance against them as no charge sheet was filed as against them. He has also submitted that the learned Magistrate had no jurisdiction and was not empowered to take cognizance against them as no charge sheet was filed as against them. In this connection, he has referred to the cases of Ranjeet Singh v. State of Punjab, 1998 (7) SCC 149 , Raj Kishore Prasad v. State of Bihar and anr., (1996) 4 SCC 495 , Kalamudeen and ors. v. State of Rajasthan and anr., 2005 (2) Cr.L.R. (Raj.) 1118 , Banna v. State of Rajasthan, 2003 (1) R.C.C. 253 , Kishori Singh and others v. State of Bihar and anr., AIR 2000 SC 3725 , Sukhdas and ors. v. State of Rajasthan, 2001 Cr.L.R. (Raj.) 364 and Suresh Chandra v. State of Rajasthan and Bhagwati Lal, 2002 (1) R.C.C. 340 . 4. Learned Counsel for the complainant has with the consent and leave of the learned Public Prosecutor submitted and reply that the order accepting or rejecting the application under Section 169 Criminal Procedure Code is a judicial order which has to be passed by applying judicial mind and on the basis of the materials on record. Learned Magistrate is not bound in all cases to invariably accept the application under Section 169 Criminal Procedure Code moved by the investigating agency and to release the accused whose release has been prayed for. He has further submitted that the petitioners are named in the F.I.R. There are clear and unambiguous allegation against them in the F.I.R. as well as in the statements recorded under Section 161 Criminal Procedure Code which indicate that they are the main culprits who had fired at the deceased. The investigating officer has not mentioned in the charge sheet or the application under Section 169 Criminal Procedure Code the reason and grounds for not finding the petitioners involved in the alleged occurrence. He has also not clarified as to why the statements of the witnesses recorded under Section 161 Criminal Procedure Code were not reliable. It is not the case of the prosecution that the alleged eye witnesses were not present on the place of occurrence. No reason has been alleged against the witnesses for having falsely implicated the petitioners in this occurrence. 5. Learned counsel for the complainant has submitted that the authorities referred to by the learned counsel for the petitioners are all distinguishable on facts. No reason has been alleged against the witnesses for having falsely implicated the petitioners in this occurrence. 5. Learned counsel for the complainant has submitted that the authorities referred to by the learned counsel for the petitioners are all distinguishable on facts. The Supreme Court authorities have not considered the provision of Section 190 Criminal Procedure Code under which the Magistrate is empowered to take cognizance on the negative police report as well. These authorities deal with the provision of Section 209 and 319 Criminal Procedure Code only which pertain to post committal stage. In this regard, reliance has been placed upon the cases of Sheoram Singh v. State of Rajasthan and two other revision petitions 1984 R.C.C. 11 , Gangadhar Janardan Mhatre v. State of Maharashtra and others, 2004 (2) WLC (SC) Criminal 783 : (2004) 7 SCC 768 , Rajinder Prasad v. Bashir and others, 2002 R.C.C. (SC) 46 , Suresh Chandra v. State of Rajasthan & Bhagwati Lal, 2002 (1) R.C.C. 340 , Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 , Banni and ors. v. State of Rajasthan, 2003(1) R.C.C. 225 , Param Hans Singh and others v. The State, 1988 Cr. L.J. NOC 16 (All.) , Hareram Satpathy v. Tikaram Agarwala and others, (1978) 4 SCC 58 , Kishun Singh and others v. State of Bihar, (1993) 2 SCC 16 , Ratilal Bhanji Mithanji v. State of Maharashtra and others, AIR 1979 SC 94 and SWILL Ltd. v. State of Delhi and another, (2001) 6 SCC 670 . 6. I have considered the rival submissions made at the bar and have perused the record as well as the authorities cited on either side. 7. It is not in dispute that the petitioners are named in the F.I.R. There are clear and unambiguous allegations against them that they fired at Rajjak as a result of which he died on the spot. Indisputably, the alleged eye witnesses have all stated so in their statements recorded under Section 161 Criminal Procedure Code as also in their statements on oath recorded during the trial. It is not the case of the prosecution that these eye witnesses were not present there or they did not witness the occurrence. Indisputably, the alleged eye witnesses have all stated so in their statements recorded under Section 161 Criminal Procedure Code as also in their statements on oath recorded during the trial. It is not the case of the prosecution that these eye witnesses were not present there or they did not witness the occurrence. The investigation officer has neither mentioned in the charge sheet nor in the application under Section 169 Criminal Procedure Code as to how and why he has come to the conclusion that the two petitioners are not involved in the alleged occurrence despite there being materials on record indicating their positive involvement. 8. The learned Magistrate has in the impugned order alluded to these aspects and in my opinion, rightly so. He has also given cogent reasons for taking cognizance of the alleged offences after rejecting the application under Section 169 Criminal Procedure Code. The learned counsel would not point out any infirmity in the impugned order with regard thereto. I do not find any cogent and valid reason to take a different view from the one taken by the learned Magistrate in the impugned order. 9. The order deciding application under Section 169 Criminal Procedure Code is not an administrative order but is a judicial order which is to be passed after due application of judicial mind on the basis of the materials available on record as held by a three Judge Bench of the Apex Court in Raghubans Dubey v. State of Bihar (supra) that the Magistrate takes cognizance of the offence and not of the offenders. The Apex Court has observed in the case of Gangadhar Janardan Mhatre v. State of Maharashtra and others (supra) that the Magistrate can ignore the conclusion arrived at by the I.O. in the report forwarded by the police to the Magistrate that no case is made out against the accused and he can independently apply his mind to the facts emerging from investigation and take cognizance if he thinks fit by exercising powers under Section 190 (1) (b) Criminal Procedure Code. 10. 10. A Division Bench of this Court has in the case of Sheoram Singh v. State of Rajasthan and two other revisions (supra) held that the Magistrate is empowered under Section 190 Criminal Procedure Code to take cognizance of a case in which the police has recommended that no offence is made out wherein it has been observed that these powers of the Magistrate are well recognised by the authoritative pronouncement in Lumbaram v. State of Rajasthan, 1956 RLW 349 . It is thus possible by a Magistrate to take cognizance of an offence on a police report even though the police wants to accept its negative report, if that report contains facts constituting an offence. In coming to the aforesaid conclusion, reliance has been placed on the cases of Abhinandan Jha and ors. v. Dinesh Mishra, AIR 1968 SC 117 and India Carat (P) Ltd. v. State of Karnataka, AIR 1989 SC 885 . It has been held in the case of Gangadhar Janardhan Mihatre v. State of Maharashtra and others (supra) that a Magistrate has jurisdiction to take cognizance of the offence under Section 190 Criminal Procedure Code against such persons also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offences alleged to have been committed. In Raghubans Dubey v. State of Bihar (supra) the Apex Court has approved the law laid down in the case of SWIL Ltd. v. State of Delhi (supra). 11. Section 209 Criminal Procedure Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Sessions after compliance with the provisions of Section 207 or Section 209, as the case may be. While taking congnizance under Section 190 of the Criminal Procedure Code, the Magistrate is neither holding an inquiry as contemplated under Section 2(g) Criminal Procedure Code nor the trial can be said to have commenced. While taking congnizance under Section 190 of the Criminal Procedure Code, the Magistrate is neither holding an inquiry as contemplated under Section 2(g) Criminal Procedure Code nor the trial can be said to have commenced. It has been clearly held that there is no bar under Section 190 Criminal Procedure Code on the issuance of process to some other person against whom there is material on record but his name is not included as accused in the charge sheet. In none of the authorities of the Supreme Court referred to by the learned counsel for the accused-petitioner case of SWIL Ltd. v. State of Delhi (supra), the facts of which case are somewhat similar to the present case has been considered and in none of the Supreme Court cases the provisions of Section 190 Criminal Procedure Code have been considered. These Supreme Court cases deal with the provisions of Sections 193, 209, 227, 228, 229, 230, 231, 319 and 482 Criminal Procedure Code which obviously pertain to the post evidence collection stage and not to the stage of cognizance. 12. Learned counsel for the petitioners has heavily relied upon the case of Ranjeet Singh v. State of Punjab (supra) and has contended that after investigation the police having submitted charge sheet against some accused the trial court has no jurisdiction to take cognizance against persons against whom no charge sheet has been filed. The contention of the learned counsel is that it is only under Section 319 Criminal Procedure Code that the court has the power to issue process against such other persons after recording of the evidence in the trial. In that case, according to the F.I.R. 8 persons including the appellant allegedly constituted an unlawful assembly and at this urging one member of the assembly took the rifle of a gunman and fired at the deceased. After investigation, the police exonerated the appellant completely but after the committal of the case to the Court of Sessions by the Magistrate concerned and before the evidence collection stage the court on the petition of the complainant arraigned the appellant as an accused in the case relying upon the decision of two Judge Bench of the Supreme Court in Kishun Singh and Others v. State of Bihar (supra). However, the appeal filed by the appellant was dismissed by the High Court. So, he came before the Supreme Court. However, the appeal filed by the appellant was dismissed by the High Court. So, he came before the Supreme Court. By then, a two Judge Bench of the Apex Court in Raj Kishore Prasad v. State of Bihar and anr. (supra) had expressed reservation about the legal position as propounded in Kishun Singh's case. So, the question whether the Court of Sessions has the power under Section 319 Criminal Procedure Code to arraign a new person prior to the evidence collection stage was directed to be consider by a Large Bench and it was thus that the matter came before the three Judge Bench of the Apex Court in the case of Ranjeet Singh v. State of Punjab (supra) and it was in this context that the Hon'ble Apex Court held that once the court takes cognizance of the offence pursuant to the committal order, they only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Criminal Procedure Code can be invoked. There is no other power for the Court to permit addition of new person or persons to the array of accused. However, it was further observed, where all materials produced by the investigating agency clearly show the positive involvement of a person who was not shown in the array of the accused due to some inadvertence or omission. The Court is not altogether powerless to deal with such situations to prevent as miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court dealing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But the said procedure need be resorted to only for rectifying or correcting grave mistakes. 13. As indicated above, in the instant case, the Magistrate has in exercise of its powers under Section 190 (1) (b) Criminal Procedure Code taken cognizance of the alleged offences against accused including the petitioners and such exercise of the power by the Magistrate cannot be faulted with as the Hon'ble Apex Court in the case of Ranjeet Singh v. State of Punjab (supra) has not deal with this aspect of the matter. 14. 14. In Prem Hansh Singh and others v. The State (supra) the facts of the case were similar and akin to the facts of the instant case. An application under Section 169 Criminal Procedure Code was filed in that case as well and the cognizance of the case was taken under Section 190 (1) (b) of the Criminal Procedure Code by the learned Magistrate. The Allahabad High Court observed in that case that hands of the Magistrate are not tied with the report of the police. He can always disagree with the report of the police and came to a different conclusion on the same papers submitted by the police with the final report. 15. In view of the foregoing discussion, therefore, the authorities referred to and relied upon by the learned counsel for the petitioners being clearly distinguishable on facts are of little avail to the petitioners. 16. This apart, indisputably, the trial is at its fag and. It would, therefore, be unreasonable and inappropriate to interfere in the order of charge framed in this case on the basis of the aforesaid technical ground even if that be taken to be tenable for the sake of argument and in view of the observations made in the case of Ranjeet Singh v. State of Punjab (supra) because in a case where there are materials on record showing positive involvement of a person/persons and who has/have not been shown in the array of the accused due to some inadvertence or omission, the High Court on the report of the Court of Sessions may rectify such a mistake in exercise of its inherent powers of revisional jurisdiction. In the instant case, there being ample material on record before the learned Magistrate his order disallowing the application under Section 169 Criminal Procedure Code and taking cognizance of the alleged offences appears to be well founded and calls for no interference by this Court in exercise of the limited scope of the revisional jurisdiction of this Court. 17. In view of the foregoing discussion, this revision petition deserves to be and is hereby dismissed.Revision Dismissed. *******