JUDGMENT Hon’ble Ravindra Singh, J.—This application has been moved by the applicant Pramod Kumar Bhargava with a prayer to set aside the order dated 1.8.2006 passed by the learned C.J.M. Agra in Misc. Case No. 52 of 2006 whereby the learned C.J.M. concerned has refused to summon the O.P. No. 2. B.D. Agarwal, O.P. No. 3, Nanak Chand Agarwal, and O.P. No. 4 Surendra Singh as accused in case crime No. 319 of 2002 connected with case crime No. 320 of 2002 under Sections 147, 148, 149, 302, 307, I.P.C. and 7 Criminal Law Amendment Act, P.S. Sikandra district Agra. 2. The facts of the case in brief are that Sri S.S. Chauhan, Sub-Inspector of P.S. Sikandra district Agra lodged an F.I.R. on 11.6.2002 at 7.00 p.m. in case crime No. 319 of 2007 under Sections 147, 148, 149, 307, 302, I.P.C. and 7 Criminal Law Amendment Act, P.S. Sikandra district Agra in respect of the incident which had occurred on 11.6.2002 at about 5.30 p.m. against the applicant, co-accused Sunil Kumar, Rafique Ahmad, Rajesh Kumar, Nawal Kishore, Prashant Kumar Tiwari, Laxman Das, Rajesh Kumar Gupta and Narendra Kumar as party No. 1 and against O.P. No. 2, B.D. Agarwal, O.P. No. 3, Nanak Chand Agarwal, O.P. Surendra Singh, Bahadur Singh Chauhan, Siya Ram, Vinod Yadav, Pratap Komal Swaroop Sharma, Mallu Sheikh Phalwan and 7 or 8 other miscreants as Party No. 2. On the same day, one report was lodged by the applicant at P.S. Sikandra district Agra in respect of the same incident, according to the F.I.R. lodged by the Sub-Inspector Sri S.S. Chauhan, both the parties discharges shots on each other in respect of the dispute over a land, from the side of the first party i.e. the applicant one Laxman sustained injuries and from the side of the second party i.e. O.P. Nos. 2 to 4 one Chhotey lost his life on account of the gun shot injury. The F.I.R. was also lodged in Case Crime No. 320 of 2002 under Section 25-A, Arms Act at P.S. Sikandra. 2 to 4 one Chhotey lost his life on account of the gun shot injury. The F.I.R. was also lodged in Case Crime No. 320 of 2002 under Section 25-A, Arms Act at P.S. Sikandra. Subsequently, the F.I.R. lodged by Sri S.S. Chauhan, and the applicant were clubbed together because the case of the F.I.R. were in respect of the same incident and investigation was entrusted to the local civil police who recorded the statement of the first informant S.I. Sri S.S. Chauhan, who was then in custody and the statement of Laxman Das and the statement of the witness Nafees Ahmad, witness Prashant Tiwari, witness Sunil Kumar, witness Laxman Das were recorded under Section 164, Cr.P.C. also and the I.O. Sri Narain Singh Rana, came to the conclusion by a report dated 30.4.2004 that O.P. Nos. 2 to 4 also involved in the commission of the alleged offence, they were absconding. Thereafter, the investigation of this case was transferred to C.B.C.I.D. who recorded the statement of the witnesses who stated that O.P. Nos. 2 to 4 actively participated in the commission of the alleged offence, but O.P. No. 2 B.D. Agarwal moved an application to the Director of C.B.C.I.D. Lucknow mentioning there that he was not present at the place of occurrence and O.P. Nos. 3 and 4 were also not present at the alleged place of occurrence, in support of the plea of alibi, statement of witness were recorded relying upon the same the I.O. did not submit the charge-sheet against O.P. Nos. 2, 3 and 4 whereas charge-sheet No. 6 of 2006 dated 12.5.2006 was submitted against and applicant and other as the first party. The charge sheet No. 6A of 2006 and 7 of 2006 dated 12.5.2006 was submitted against the accused persons of second party excluding O.P. Nos. 2, 3 and 4 on the basis of the above mentioned charge-sheet submitted by the I.O. Thereafter, the applicant moved an application in the court of learned First Additional Chief Judicial Magistrate, Agra, who were not charge-sheeted, the same was rejected by the learned C.J.M. Agra on 1.8.2006, being aggrieved from the order dated 1.8.2006, the applicant has filed the present application invoking the jurisdiction of this Court under Section 482, Cr.P.C. 3. Heard Sri Virendra Singh and Sri K.K. Dwivedi, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri R.P. Dwivedi and Sri R.B. Singh, learned counsel for O.P. Nos. 2, 3 and 4. 4. It is contended by the learned counsel for the applicant that : (1) During investigation the statement of the witnesses have been recorded, according to their statements O.P. Nos. 2, 3 and 4 have actively participated in the commission of the alleged offence even then the charge-sheet has not been submitted against them whereas remaining persons of party No. 2 have been charge sheeted, in such circumstances, it was the duty of the learned magistrate concerned who took the cognizance of the offence to issue process against O.P. Nos. 2, 3 and 4 also because there was sufficient material against them showing their involvement in the commission of the alleged offence, the learned Magistrate concerned was under the obligation to issue process against O.P. Nos. 2, 3 and 4 also whereas the learned Magistrate concerned had taken cognizance upon the police report in exercise of the power conferred under Section 190(1)(b), Cr.P.C. (2) It is further contended by the learned counsel for the applicant that in the present case specific allegation have been made by the witness against O.P. Nos. 2, 3 and 4 that they have actively participated in the commission of the alleged offence but the charge sheet has not been submitted only on the basis of the plea of alibi. The plea of alibi is a defence, the same may be taken at the stage of trial but the I.O. has committed manifest error in not submitting the charge-sheet against O.P. Nos. 2, 3 and 4 on the basis of plea of alibi, the learned C.J.M. concerned has also committed the same error by not issuing the process against O.P. Nos. 2, 3 and 4 only on the basis of plea of alibi. Therefore, the impugned order dated 1.8.2006 passed by the C.J.M. Agra is illegal and is liable to be set aside and the process may be issued to O.P. Nos. 2, 3 and 4 to face the proceedings of trial. 2, 3 and 4 only on the basis of plea of alibi. Therefore, the impugned order dated 1.8.2006 passed by the C.J.M. Agra is illegal and is liable to be set aside and the process may be issued to O.P. Nos. 2, 3 and 4 to face the proceedings of trial. In support of his contention, the learned counsel for the applicant has cited the case of SWIL Ltd. v. State of Delhi and another, 2001 S.C.C. (Cri) 1205; Rajender Prasad v. Bashir and others, 2002 S.C.C. (Cri) 28 decided by the Supreme Court of India and the case of Kashi Nath Mishra v. State of U.P. and another; Gama Prasad v. State of U.P. and another, 2006 (2) J.I.C. 190 (All) decided by another bench of this Court and the case of Ashok Yadav and another v. State of Bihar, 2006 Cri. L.J. 644, decided by Patna High Court. 5. In reply to the above contention it is submitted by the learned A.G.A. and the learned Counsel for O.P. Nos. 2, 3 and 4 that : (1) After doing proper investigation and collecting evidence, the I.O. has not charge sheeted O.P. Nos. 2, 3 and 4 because they were not present at the time of the commission of the alleged offence. The I.O. has not committed any error in not charge sheeting the O.P. Nos. 2, 3 and 4. (2) That after investigation the I.O. has submitted the charge sheet against the applicant and other as party No. 1 and some other persons who were shown in party No. 2 excluding O.P. Nos. 2, 3 and 4 on which the learned magistrate concerned has taken cognizance and summoned the persons who were charge sheeted, the learned C.J.M. concerned has rightly rejected the application filed by the applicant for summoning O.P. Nos. 2, 3 and 4 as accused. the learned magistrate concerned was not empowered to summon O.P. Nos. 2, 3 and 4. In the present case the charge sheet has been submitted for the offence triable by the court of session, therefore, only the Session Court was having jurisdiction to summon O.P. Nos. 2, 3 and 4 in exercise of the power conferred under Section 319, Cr.P.C. when the some evidence comes against O.P. Nos. 2, 3 and 4. The learned C.J.M. concerned has not committed any error in rejecting the application on 1.8.2006 filed by the applicant. 2, 3 and 4 in exercise of the power conferred under Section 319, Cr.P.C. when the some evidence comes against O.P. Nos. 2, 3 and 4. The learned C.J.M. concerned has not committed any error in rejecting the application on 1.8.2006 filed by the applicant. The learned counsel for O.P. Nos. 2, 3 and 4 cited a case of Kishori Singh and others v. State of Bihar and another, 2006 1 S.C.C. (Cri) 275 decided by the Hon’ble Supreme Court in respect of the above mentioned contention. (3) That from the perusal of the record, it appears that in the present case from both the side firing has been done, the statement of the alleged eye-witnesses have been recorded, who have disclosed the name of O.P. Nos. 2, 3 and 4 that they have actively participated in the commission of the alleged offence but the I.O. has not charge sheeted O.P. Nos. 2, 3 and 4 only on the basis of the plea of alibi whereas their other companion have been charge sheeted. The learned C.J.M. has rejected the application filed by the applicant for summoning the O.P. Nos. 2, 3 and 4 as accused vide order dated 1.8.2006. In the present case namely two issues are involved one of the issue is that in case same persons are named in the F.I.R. and the eye-witnesses have also stated during investigation that such person was actively participated in the commission of the alleged offence, even then the I.O. has not charge sheeted such persons, whereas other persons were charge-sheeted as accused whether the learned magistrate concerned was empowered to issue process against the person who has not been charge sheeted whereas some other persons were charge sheeted. The other issue involved in the matter is that in case the person is named in the F.I.R. as accused and according to the statement of the eye-witnesses and other material collected by the I.O., prima facie it appears that he has also participated in the commission of the alleged offence but some material is collected by the I.O. showing that such person was not present at the time of the commission of the alleged offence at the alleged place of occurrence i.e. on the basis of the plea of alibi, whether the I.O. can exonerated the person by not submitting the charge-sheet, thereafter, whether the learned magistrate concerned is empowered to issue process against the person who has not been charge sheeted on the ground of alibi. 6. To deal with the first issue it is well settled that if any police report is submitted before the learned Magistrate concerned either by way of submitting a charge-sheet or final report, the learned Magistrate concerned is under obligation to apply the mind independently, if the learned Magistrate concerned came to the conclusion that the person who is not charge sheeted, but there is sufficient material showing their participation in the commission of the alleged offence, the learned Magistrate concerned may issue process against such person, who has not been charge sheeted. 7. This controversy has been properly settled by the Hon’ble Supreme Court in the case of SWIL Ltd. v. State of Delhi and another, 2001 S.C.C. (Cri) 1205 by holding that there is no bar under Section 190, Cr.P.C. once the process is issued against some accused on the next date the magistrate cannot issue the process to some other persons against whom there is some material on record but his name is not included as an accused in the charge-sheet. It has been dealt with in paragraphs 6 and 7 of the judgment which is as under : “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, Cr.P.C. 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 offender”. As per this provision, the Magistrate takes cognizance of an offence and not the offender. Section 190 inter alia provides that “the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offender”. As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the magistrate under Section 204, Cr.P.C. 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 F.I.R. 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), Cr.P.C., 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 emerging 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, Cr.P.C. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar by holding thus : “In our opinion, once cognizance has been taken by the Magistrate, the 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, Cr.P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2(g), Cr.P.C. nor had the trial started. 7. Further, in the present case, there is no question of referring to the provisions of Section 319, Cr.P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2(g), Cr.P.C. nor had the trial started. He was exercising his jurisdiction under Section 190, Cr.P.C. 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.” 8. The above mentioned view has been taken by the Hon’ble Supreme Court of India in the case of Rajender Prasad v. Bashir and others, 2002 SCC (Cri) 28 in paragraph 11 and 12 of the judgment is read as under : “11. Under this section, a Magistrate has jurisdiction to take cognizance of offences 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 offence alleged to have been committed. Section 209 of the 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 Session, he shall commit, after compliance with the provisions of Section 207 or Section 209, as the case may be, the case to the Court of Session and subject to the provisions of the Code, pass appropriate orders. This section refer back to Section 190, as is evident from the words "instituted on a police report” used in Section 190(1)(b) of the Code. While dealing with the scope of Section 190 this Court in Raghubans Dubey v. State of Bihar held that the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well. 12. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well. 12. Approving the judgment in Raghubans Dubey case this court in SWIL Ltd. v. State of Delhi held : (SCC p. 673 para 7) “[I]n the present case, there is no question of referring to the provisions of Section 319, Cr.P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2(g), Cr.P.C. nor had the trial started. He was exercising his jurisdiction under Section 190, Cr.P.C. 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.” 9. Considering the view of the Hon’ble Supreme Court in the above mentioned case, the learned magistrate concerned was under duty to find out the offender apart from the person sent by the police authority in the commission of the alleged offence. It is the duty of the learned magistrate concerned to proceed against such offender because the cognizance of an offence is taken not an offender, once the cognizance of an offence is taken, it is the duty of the magistrate to find out the offender. 10. In the present case the learned C.J.M. Agra was under obligation to consider the material collected by the I.O. whether any offence against O.P. Nos. 2, 3 and 4 is prima facie made out or there was no sufficient material to proceed further against them but the learned C.J.M. Agra has committed manifest error by not perusing the case diary to find out whether O.P. No. 2, 3 and 4 are offender or there is sufficient material to proceed further against them. 11. 2, 3 and 4 is prima facie made out or there was no sufficient material to proceed further against them but the learned C.J.M. Agra has committed manifest error by not perusing the case diary to find out whether O.P. No. 2, 3 and 4 are offender or there is sufficient material to proceed further against them. 11. So far as the second issue is concerned, it is well settled that the plea of alibi, howsoever strong it may be, is always a defence, no doubt, it would be relevant at the stage of evidence, but it would be premature to rely on the plea of alibi and thereby nullify the prosecution case at the outset. It would not be proper for the I.O. to ignore the eye-witness account and other material, if available against O.P. Nos. 2, 3 and 4 and not filing the charge-sheet against them only on the ground of plea of alibi, the learned magistrate has also committed manifest error relying upon the material collected by the I.O. in support of the plea of alibi at pretrial stage. 12. I have gone through the case of Kishori Singh and others v. State of Bihar and another, 2006 (1) S.C.C. (Cri) 275 cited by the learned counsel for O.P. Nos. 2, 3 and 4 but it is not applicable in the present case. In view of the above discussion the impugned order dated 1.8.2006 passed by the learned C.J.M. Agra in Misc. Case No. 52 of 2006 is illegal and is hereby set aside, it is directed that the learned C.J.M. Agra shall pass a fresh order on the application dated 23.6.2006 filed by the applicant in accordance with law. With the above discussion this application is finally disposed of. ————