ORDER : 1. This Revision has been filed under sections 397, 399, 401 and 482 of the Code of Criminal Procedure being aggrieved by the order dated 24-6-2013 passed by the IV Additional Sessions Judge-cum-Special Judge, CBI, Indore in Criminal Revision No. 77/2013 whereby the order passed by the Judicial Magistrate-cum-CBI Judge, Indore in Special Criminal Case No. 2/2010 on 29-12-2012 taking cognizance against non-applicant No. 2 (Rajendra Patel) has been set aside, and the matter has been remitted back to the Judicial Magistrate to decide the application under section 190 of Criminal Procedure Code, as per the guidelines issued in the order of revisional Court. 2. The facts leading to the case are, for an incidence took place on 5-3-2008 at 10.40 p.m. within the residential premises of Rajendra Patel, an intimation has given by him to the police in writing at 1.20 a.m. in the intervening night of 5/6-3-2008 inter-alia contending that Sandeep Patel along with three others persons trespassed the house breaking the gate with Tavera vehicle bearing No. MP04 CA 2789 at 10.45 p.m. and one of them fired, which was missed. In retaliation Rajendra Patel fired two shots, former by means of 12 bore gun and later by means of 315 bore rifle supplied by his wife, thereby someone received injury. On the said written report, FIR was registered at Crime No. 107/2008 on 6-3-2008 at 3.15 a.m. for the offence under section 451, 336/34 of the Indian Penal Code against Sandeep and three others. Thereafter statement of Rajendra Patel was recorded by police under section 161, Criminal Procedure Code first time on 6-3-2008 where, in addition to the aforesaid prosecution story, it is stated that fire shot was received to one boy and another on the body of Tavera vehicle. It is also stated that those accused persons have first reached to the house of Kamal Patel and the vehicle used in offence is also of him. Thus on receiving the injury the accused persons became panic and fled away from the spot in the said vehicle. 3. On 11-5-2008, Ramvilas Jaat, father of Durgesh Jaat lodged the Gumshudgi of his son which was registered on 11-5-2008. Thus on receiving the injury the accused persons became panic and fled away from the spot in the said vehicle. 3. On 11-5-2008, Ramvilas Jaat, father of Durgesh Jaat lodged the Gumshudgi of his son which was registered on 11-5-2008. Thereupon investigation was done and on completion of investigation offence under section 302, Indian Penal Code was registered against Rajendra Patel(non-applicant No. 2) and under section 201/34, Indian Penal Code against Sudeep Patel, Arun Jaat, Deepak Saran, Manoj Kushwaha, Amit Patel and others on 5-10-2008 at Crime No. 524/2008. 4. As the dead body of Durgesh Jaat was not found and recovered by the police during investigation, therefore Ramvilas Jaat, father of the missing (deceased Durgesh Jaat) filed a Habeas Corpus petition (W.P.No. 11986/2008) which was decided by Principal Seat, Jabalpur issuing direction to the Director, CBI to take over the investigation of both the cases of the incidents of shooting and death of Durgesh as they are interrelated and bring the investigation to its logical conclusion in accordance with law. In view of the order of CBI investigation passed by the High Court, both the cases were handed over to the CBI whereupon two cases were registered, the details thereof are: (1) CBI 1st FIR No. RC 5(S)/2008/CBI/SCB/LKO (Case of Crime No. 107/2008) and (2) CBI 2nd FIR No. RC 6(S)/2008/CBI/SCB/LKO (Case of Crime No. 524/2008). 5. After completion of investigation, a common charge-sheet No. 3/2010 was filed, by CBI in both the FIRs before the Special Judicial Magistrate, CBI Indore, under sections 34, 307, 458/304-II, 201 and 120-B of Indian Penal Code and under section 27 of the Arms Act against Sudeep Patel, Deepak Saran, Arun Jaat, Amit Patel, Manoj Kushwah, Rajesh Lathi, Raghunandan Singh, Kamal Patel and Sandeep Patel. As Durgesh Jaat died and his dead body was not found, however, he cannot be made accused and charge-sheeted. It was also found that by gunshot fire of Rajendra Patel, Durgesh Jaat died, but, the said fire was shot by him in right to private defence, however, despite allegation against him, offence under section 302, Indian Penal Code was not registered extending benefit of right to private defence and challan has not been filed against him. 6. On filing challan, the Committal Court has taken cognizance on the said charge-sheet against the aforementioned accused persons. On 3-11-2010, supplementary charge-sheet was filed against accused Gyanesh Jaat also. 6. On filing challan, the Committal Court has taken cognizance on the said charge-sheet against the aforementioned accused persons. On 3-11-2010, supplementary charge-sheet was filed against accused Gyanesh Jaat also. Thereafter, on 13-1-2011, the Court passed the order of committal to the District and Sessions Judge, Harda. After committal, the Addl. Sessions Judge, Harda vide order dated 20-7-2011 discharged the accused Kamal Patel from the offence under sections 120-B, 304-II, 201 of Indian Penal Code; whereas accused Sandeep Patel, Sudeep, Deepak and Arun Jaat were also discharged from the offence under section 27 of the Arms Act and directed to face the trial for remaining offences. Against the order of committal to Harda Court, Criminal Revision No. 703/2011 was filed at Indore Bench by Union of India inter-alia contending that the Additional Sessions Judge, Harda is having no jurisdiction to try the offences, however, the order to commit the case was set aside and the matter was remitted back to JMFC, Indore to pass fresh order of committal. In the said Criminal Revision, this Court while passing the order dated 17-9-2012 set aside the order of committal Court to Additional Sessions Judge, Harda and directed to transmit the record of the Sessions Trial No. 27/2011 pending before him to the Judicial Magistrate-cum-CBI Court, Indore for passing the fresh order of committal to Sessions Court, Indore in accordance with law as expeditiously as possible. 7. On remittance of the case to the Judicial Magistrate-cum-CBI Court, Indore, an application under section 190 of Criminal Procedure Code was filed before him by the accused Gyanesh Jaat making request to take cognizance of offence under section 302 of Indian Penal Code against Rajendra Patel (Non-applicant No. 2) because he shot fire over the deceased Durgesh Jaat, and on receiving such injury he succumbed. The Committal Court vide order dated 29-12-2012 allowed the said application and after detailed discussion of the statement of prosecution witnesses found that sufficient material to take cognizance against accused Rajendra Patel is available and the action of CBI to not to file charge-sheet joining him as an accused was not found in accordance with law. The Committal Court vide order dated 29-12-2012 allowed the said application and after detailed discussion of the statement of prosecution witnesses found that sufficient material to take cognizance against accused Rajendra Patel is available and the action of CBI to not to file charge-sheet joining him as an accused was not found in accordance with law. It is observed that the benefit of right to private defence cannot be extended by the officers of CBI and it may be granted by the Court on discharging burden of accused after considering the said plea in view of the exceptions specified under sections 100 and 103 of Indian Penal Code and as per section 105 of Evidence Act, however, by taking cognizance under section 302 of Indian Penal Code against Rajendra Patel summoned him issuing non-bailable warrant of arrest. 8. Against the order passed by the Committal Court, non-applicant No. 2 Rajendra Patel filed a Criminal Revision No. 77/2013 which was allowed by IV Additional Sessions Judge, cum Special Judge CBI, Indore vide order dated 24-6-2013 and the order of Committal Court was set aside with an observation that the power under section 190 of Criminal Procedure Code to take cognizance conferred to the Magistrate is not circumscribed, but while taking cognizance it is required to consider the case of the revisionist and non-revisionist fall within the purview of cross-case or counter case. It is to be further examined that both the cases can be tried in one trial and the charge may be framed against both the persons in one trial. It is further required to be examined that both the parties may be an accused and witnesses in one prosecution against each other and the witnesses may be made accused. It is to be further examined that such trial shall not prejudice the right of both the parties. Thus by setting aside the order, it was directed that JMFC Court to consider the said points and to pass the order afresh. Being aggrieved the applicant has assailed the findings recorded by the Revisional Court filing this revision. 9. It is to be further examined that such trial shall not prejudice the right of both the parties. Thus by setting aside the order, it was directed that JMFC Court to consider the said points and to pass the order afresh. Being aggrieved the applicant has assailed the findings recorded by the Revisional Court filing this revision. 9. Shri Jai Singh, learned senior counsel, appearing on behalf of the applicant argued at length and referring the provisions of section 190 read with sections 207 and 209 of Criminal Procedure Code submitted that the power to take cognizance against the accused named in the FIR, though not charge-sheeted has been conferred to the Magistrate under section 190(1)(b) of Criminal Procedure Code, who can take cognizance on consideration of the material available in the charge-sheet filed, and after recording satisfaction. If any order is passed on due consideration, it cannot be set aside in exercise of the revisional jurisdiction by the higher Court. In support of the aforesaid contention, reliance has been placed on a judgment rendered by Hon'ble the Apex Court in the case of Uma Shankar Singh vs. State of Bihar and Another, (2010) 9 SCC 479 and on a recent judgment in the matter of Nupur Talwar vs. Central Bureau of Investigation and Another, 2013 AIR SCW 369. He has also placed reliance on a judgment of M/s Swil Ltd. vs. State of Delhi and Another, AIR 2001 SC 2747 and also on Rajinder Prasad vs. Bashir and Others, (2001) 8 SCC 522 and submitted that the Magistrate is having power to disagree with the police report and may summons to a person named in the FIR not made accused at the time of filing challan. In support of such contention, reliance has also been placed on a judgment of Dhrup Singh and Others vs. State of Bihar, (2013) 4 SCC 275 and in the case of Dharam Pal and Others vs. State of Haryana and Another, 2013 Cr. L.R. (SC) 818 by the Bench consisting of five Judges has observed that cognizance against the persons not shown as an accused in the charge-sheet and the Magistrate took cognizance under section 190, Criminal Procedure Code in a case triable by Sessions Court then after committal the Sessions Court has right to issue the summons to the said accused. L.R. (SC) 818 by the Bench consisting of five Judges has observed that cognizance against the persons not shown as an accused in the charge-sheet and the Magistrate took cognizance under section 190, Criminal Procedure Code in a case triable by Sessions Court then after committal the Sessions Court has right to issue the summons to the said accused. Lastly, it is submitted by him that the cognizance in a criminal case ought to be taken for an “offence” and not against an “offender.” In support of such contention, reliance has been placed on a judgment of the Apex Court in the case of Raghubans Dubey vs. State of Bihar, AIR 1967 SC 1167 . In the said context, it is urged that the observations of the revisional Court while remitting back the matter to the Judicial Magistrate cum CBI Court to pass an order afresh is unsustainable in law. 10. Shri Vivek Sharan, Assistant Solicitor General, representing the Central Bureau of Investigation has strenuously urged that the order passed by the revisional Court is in conformity to law. It is submitted by him that in the present case the cognizance has been taken by the Court long back and the order of committal was passed on 29-12-2011 to commit the case to the Sessions Court, Harda. The said order was set aside by this Court in Criminal Revision No. 703/2011 vide order dated 17-9-2012 directing the Magistrate to pass the order afresh of committal to the Court of Sessions Judge, Indore. Thereafter, the Magistrate ceases the power to take cognizance, and ought to pass the order of committal only, without exercising the power under section 190 of Criminal Procedure Code, otherwise if the power is exercised afresh, it would amount to review of the order taking cognizance passed by the Magistrate earlier. In support of such contention, reliance has been placed on a judgment rendered by Hon'ble Supreme Court in the case of Adalat Prasad vs. Roopal Jindal and Others, AIR 2004 SC 4674 , Subramanium Sethuraman vs. State of Maharashtra and Another, (2004) 13 SCC 324 and Bholu Ram vs. State of Punjab and Another, (2008) 9 SCC 140 . In support of such contention, reliance has been placed on a judgment rendered by Hon'ble Supreme Court in the case of Adalat Prasad vs. Roopal Jindal and Others, AIR 2004 SC 4674 , Subramanium Sethuraman vs. State of Maharashtra and Another, (2004) 13 SCC 324 and Bholu Ram vs. State of Punjab and Another, (2008) 9 SCC 140 . It is further contended that after remand by the High Court to pass the order of committal by the Magistrate, without condoning the delay of such a long period, passing an order in exercise of the powers under section 190, Criminal Procedure Code is not permissible. In any case, if the jurisdiction was required to be exercised under section 190 of Criminal Procedure Code then it is obligatory on the Magistrate to take report from CBI under section 156(3) of Criminal Procedure Code or to direct for filing a fresh report as per section 173(8) of Criminal Procedure Code. In support of the said contention, reliance has been placed on Prakash Singh Badal vs. State of Punjab, (2007) 1 SCC 1 , Fakhruddin Ahmed vs. State of Uttaranchal, (2008) 17 SCC 157 , Mona Panwar vs. High Court of Judicature of Allahabad, (2011) 3 SCC 496 and Dilawar Singh vs. State of Delhi, (2007) 12 SCC 64. The reliance has also been placed on some other judgments but since they are in the context of section 319 of Criminal Procedure Code which is not relevant at this juncture, thus, those are not being referred. 11. Shri Raghvendra Kumar, counsel appearing on behalf of respondent No. 2, submits that after passing the order by this Court in Criminal Revision No. 703/2011, the Magistrate ceases with the powers to take cognizance under section 190 of Criminal Procedure Code again reviewing earlier order of taking cognizance. The Magistrate has to pass an order from the stage of section 207 and 209 of Criminal Procedure Code only. On the merits of the case, it is fairly submitted by him that the investigation has not properly been done by the prosecution agency including CBI with a view to help the accused persons. At last, he has adopted the arguments advanced by the learned counsel for CBI on all the points. 12. On the merits of the case, it is fairly submitted by him that the investigation has not properly been done by the prosecution agency including CBI with a view to help the accused persons. At last, he has adopted the arguments advanced by the learned counsel for CBI on all the points. 12. After having heard learned counsel for the parties at length and in the facts and circumstances of the case, it is required to be examined whether the order passed by the revisional Court setting aside the order of JMFC cum CBI Court and remitting back the matter to pass appropriate order on the application under section 190 of Criminal Procedure Code considering the observations made by the revisional Court is in accordance with law? It is to be further examined whether observations made by the revisional Court are relevant for a Magistrate while deciding the application under section 190 of Criminal Procedure Code? It is further required to be examined that after setting aside the order of Magistrate to commit the case to Court of Sessions Judge, Harda by this Court and on remitting the matter to the Magistrate, he can exercise the powes under section 190 of Criminal Procedure Code? It is further to be seen while passing the order impugned, the satisfaction has been recorded by the Magistrate and thereafter revisional Court has rightly exercised the jurisdiction by passing the order impugned? 13. All the aforementioned questions are co-related with each other; however, to answer these questions, the facts and legal position are required to be considered simultaneously. As per the prosecution story, it is clear that on 5-3-2008 at about 10.45 p.m. accused Sandeep along with three others, including Durgesh Jaat made criminal trespass after breaking the Gate of the house of Rajendra patel by a Tavera vehicle. One of the persons boarded in the said vehicle fired on Rajendra Patel which was missed. In retaliation, Rajendra Patel made two fires; one by means of 12 bore gun and another by means of 315 bore rifle supplied to him by his wife on the spot. As per the statement of Rajendra Patel recorded by the police under section 161, Criminal Procedure Code, the said fire injury was received to the accused and thereby they fled away from the spot. As per the statement of Rajendra Patel recorded by the police under section 161, Criminal Procedure Code, the said fire injury was received to the accused and thereby they fled away from the spot. It is not in dispute that on Crime No. 107/2008 offence under sections 451, 336 and 34 of the, Indian Penal Code was registered against Sandeep Patel and three others; and one another offence was registered at Crime No. 524/2008 under sections 302, 201 and 34 of Indian Penal Code against Rajendra Patel, Sudeep Patel, Arun Jaat, Deepak Saran, Manoj Kushwah, Amit Patel and others. It is also not in dispute that as per the order of the High Court passed in W.P. No. 11986/2008, Ramvilas Jaat vs. CBI, the investigation was handed over to the CBI. Thereupon, two FIRs were registered by CBI as aforementioned. It is also not in dispute that after investigation, CBI filed the charge-sheet No. 3/2010 registering an offence under sections 34, 307, 458/304-II, 201 and 120-B of Indian Penal Code and under section 27 of the Arms Act against Sudeep Patel, Deepak Saran, Arun Jaat, Amit Patel, Manoj Kushwah, Rajesh Lathi, Raghunandan Singh, Kamal Patel and Sandeep Patel. In the charge-sheet the name of Durgesh Jaat and Rajendra Patel were shown as accused, but because Durgesh Jaat died therefore challan has not been filed. The name of Rajendra Patel has been shown as an accused No. 11 but for the following reasons, the charge-sheet has not been filed against him: “Investigation has further revealed that the accused persons Sudeep Patel, Deepak Saran, Arun Jat and one more person along with deceased Durgesh Jat had committed the offence of criminal trespass and house breaking by night and had fired upon the complainant Rajendra Patel with intention to kill him. As such the right of private defence of the body and property of Rajendra Patel extended to causing death in terms of sections 100 and 103, Indian Penal Code. As such the right of private defence of the body and property of Rajendra Patel extended to causing death in terms of sections 100 and 103, Indian Penal Code. From the facts and circumstances of the case and the evidences oral and documentary and the material exhibits collected during the course of investigation it has been established that, the accused persons Sudeep Patel, Deepak Saran and Arun Jat have committed offences under sections 34/307/458/304-II/201, Indian Penal Code and section 27 Arms Act and Rajesh Lathi, Amit Patel, Manoj Kushwaha, Sandeep Patel and Kamal Patel have committed offence under sections 120-B/304-II/201, Indian Penal Code and Raghunandan Singh under section 120-B/201, Indian Penal Code. Durgesh Jat had committed offence under section 34/307/458/, Indian Penal Code and section 27 Arms Act. However, since he has died, he can not be sent up for trial and his name has been mentioned in column No. 12 of this report. No case is made out against Rajender Patel as his act was done in exercise of his right to self defence under sections 100 and 103, Indian Penal Code and his name has been mentioned in Column No. 12 of this report.” 14. In the aforesaid sequel of facts, it is clear that in a prosecution case, the name of Rajendra Patel has been specified as an accused but in exercise of power under sections 100 and 103 of Indian Penal Code, the CBI officers extending the benefit of right to private defence, not filed the challan against him. Applicant herein filed an application under section 190 of Criminal Procedure Code, to take cognizance, which is allowed by the Committal Court vide order dated 29-12-2012 holding that in the facts of this case, action of the CBI to not to made accused to Rajendra Patel and not to file charge-sheet against him is not in accordance with law. It was also observed that the benefit of right to private defence cannot be extended by the prosecution agency to him. As per section 105 of the Evidence Act, the accused has to prove the said fact in a Court discharging burden lay on him. For the purposes of taking cognizance against him under section 190 of Criminal Procedure Code, sufficient material is available on record, however, taking cognizance non-bailable warrant of arrest has been issued securing production of the accused Rajendra Patel in the Court. 15. For the purposes of taking cognizance against him under section 190 of Criminal Procedure Code, sufficient material is available on record, however, taking cognizance non-bailable warrant of arrest has been issued securing production of the accused Rajendra Patel in the Court. 15. In the aforementioned facts of the case, it is to be examined that what are the powers to the Magistrate for taking cognizance of the offence. In this regard, section 190 of Criminal Procedure Code is reproduced below: “190. Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially 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) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” 16. In view of the above, it is clear that the Magistrate specially empowered in this behalf may take cognizance of an offence upon a police report of such facts. Thus, taking cognizance by the Magistrate is of an “offence” and not against “offender.” In the process of taking cognizance, Magistrate has to proceed and enquire into the commission of offence to adjudicate upon the guilt of the persons before him or may commit to the Court of Sessions for adjudication of guilt. In the aforementioned facts, the question would be that having taken cognizance of an offence qua certain accused persons, does the Magistrate become defunctus officio in the sense that he is debarred from proceeding against such other persons as may be found by him to have been the real culprits, if left out by the person or authority at whose instance the proceedings had been initiated. The Apex Court in the case of Raghubans (supra) observed as under: “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.” 17. The said view has been reiterated by their Lordships in the case of Hariram vs. Tikaram, AIR 1978 SC 1568 laying down the law in the following Para which is reproduced as under: “In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima-facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our Judgment exceed the power vested in him under law.” 18. The Hon'ble Apex Court in the case of Uma Shankar Singh (supra), in Paras 19 and 20, has held as under: “19. The law is well settled that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under section 190(1)(b), Criminal Procedure Code. That is precisely what has happened in the present case. 20. In the instant case the investigation had been handed over to CID and both CID and the local police had submitted their reports in final form exonerating the petitioner of the allegations made against him in the FIR. However, the Chief Judicial Magistrate, Siwan took cognizance of the offence under sections 302/379, Indian Penal Code and section 27 of the Arms Act against the petitioner. This is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under section 190(1)(b), Criminal Procedure Code.” 19. This is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under section 190(1)(b), Criminal Procedure Code.” 19. The Hon'ble Supreme Court recently in the case of Nupur Talwar (supra) has held that it is imperative for the Magistrate to record the reasons differing with the prayer made by the prosecution agency and if the reasons have been assigned recording satisfaction, the Court not found the order of issuance of process is at fault because it was supported by plausible reasons. In the said case, it was also held that against the order issuing process revisional Court cannot go into the question whether reasons given by the Magistrate were good or bad sufficient or insufficient. The revisional Court can only see whether the material before the Magistrate to take a view with sufficient grounds for issuing process is available or not. It is also held that the further investigation cannot be ordered once cognizance has been taken by the Magistrate on a police report. 20. In the case of Dharam Pal (supra), Hon'ble the Apex Court has observed that a person is not shown as an accused in the charge-sheet and if Magistrate took cognizance under section 190 of Criminal Procedure Code in a case triable by the Court of Sessions and order upheld up to the High Court, then on committal of the case, Sessions Judge is entitled to issue summons. It is observed that view taken in the case of Kishun Singh (supra) is a correct view disagreeing with the view in case of Ranjit Singh vs. State of Punjab, (1998) 7 SCC 149 . Similarly in the case of Dhrup Singh (supra), it is held that the power of the Magistrate to disagree with the police report and to issue summons to the persons named in the FIR but not charge-sheeted upon independent application of mind by the Magistrate to the materials on record may be exercised and it is not required to wait upto the stage of section 319 of Criminal Procedure Code. 21. 21. In the case of M/s Swil Limited (supra), the Hon'ble Supreme Court has observed that if a person not joined as accused in charge sheet can be summoned at the stage of taking cognizance under section 190, Criminal Procedure Code since at the stage of taking cognizance of an offence Magistrate can ascertain from statement of witnesses examined by investigating officer as to who the offenders really are. It has been observed that 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. 22. In the case of Rajinder Prasad (supra) while dealing with the said issue, the Hon'ble Supreme Court has emphasized about the duties of the Magistrate while taking cognizance under sections 190 and 209 of Criminal Procedure Code. The Court observed that cognizance can be taken by the Magistrate of an offence not included in the charge-sheet submitted by the police and thereafter on being prima-facie satisfied on the basis of the evidence collected by the police about the commission of that offence and also by some persons other than those arrested by the police then it is the duty of the Magistrate to proceed against the remaining persons. 23. In view of the foregoing observations of the Hon'ble Supreme Court, reliance placed by the counsel for the CBI in Adalat Prasad (supra) is of no consequence. It can be observed that the case of Adalat Prasad (supra) is on different facts and to answer the different legal issues and not in the context of taking cognizance against a person shown as accused in the prosecution case, but not joined accused taking cognizance of offence. The observations made in Subramanium Sethuraman (supra) Bholu Ram (supra) and Fakhruddin Ahmed (supra) are also not in the context of the legal issues involved in the present case. Simultaneously, it can be observed that in the recent judgment of Nupur Talwar (supra), the judgments of Mona Panwar (supra), Dilawar Singh (supra) and Prakash Singh Badal (supra) have been considered, thus which are of no help to the respondent-CBI. 24. Simultaneously, it can be observed that in the recent judgment of Nupur Talwar (supra), the judgments of Mona Panwar (supra), Dilawar Singh (supra) and Prakash Singh Badal (supra) have been considered, thus which are of no help to the respondent-CBI. 24. As per the judgment of Raghubans Dubey (supra), it is clear that when the Magistrate exercises the power under section 190 of Criminal Procedure Code it relates back to power under section 207 of Criminal Procedure Code and thereafter power under section 209 of Criminal Procedure Code can be exercised. In the present case, if Court without taking cognizance against non-applicant No. 2 earlier committed the case to the Court of sessions, Harda and on setting aside of such order by the High Court in Criminal Revision No. 703/2011 passed on 17-9-2012, would not mean to exercise the power of the Magistrate only under section 209 of Criminal Procedure Code and to act upon like post-office to commit it to the Sessions Court, Indore like defunctus officio. As and when the order of committal passed by the Magistrate is set aside and the matter is remitted back to the Magistrate, he can exercise the power under section 190 of Criminal Procedure Code from the said stage again looking to the material available in charge sheet and in the facts and circumstances of the case. The power of the Magistrate conferred to him under the statute is not hampered by the order of remand passed by the High Court. In this respect revisional Court itself in Para 12 observed that the power of Magistrate to take cognizance again is not circumscribed or hampered and such finding has not been assailed by the respondent No. 2 taking recourse before this Court. In such circumstances, it can safely be held that on receiving the case by a Magistrate again for committal, the said Court can exercise the power under section 190 of Criminal Procedure Code, for taking cognizance of an offence against accused, though not shown in charge-sheet. 25. In such circumstances, it can safely be held that on receiving the case by a Magistrate again for committal, the said Court can exercise the power under section 190 of Criminal Procedure Code, for taking cognizance of an offence against accused, though not shown in charge-sheet. 25. In view of the law laid down by the Hon'ble Apex Court in various preceding judgments, it is clear that if on the basis of a police report a person has been made accused by a Magistrate considering the material brought on record and satisfying himself to take cognizance, the revisional Court ought to have exercise the revisional jurisdiction looking into the fact whether the power exercised by the Magistrate is based upon the material available or not. In my considered opinion, looking to the reasonings assigned by the Magistrate as discussed hereinabove it is clear that Rajendra Patel has been made accused by the Police and the CBI also observing that he is having right to private defence and by giving benefit of exception of sections 100 and 103 of Indian Penal Code he is not made accused by the CBI as apparent from the aforequoted final report prepared at the time of filing of the challan. 26. In this respect, Chapter IV of the Indian Penal Code specifies the general exceptions. section 100 deals with exception of right to private defence of the body extends to causing death. As per the language of aforesaid section, it is clear that right of private defence of body extends under the restrictions mentioned in the last preceding section, to voluntarily causing death or of any other harm to the assailant, if the offence occasioned, in exercise of the right of any of the descriptions under section 100 of Indian Penal Code. If an assault as made may reasonably cause apprehension that death will otherwise be consequence of such assault then right of private defence is available. In the facts of this case, accused persons may take the benefit of those exceptions. In the said context, Chapter-7 of the Evidence Act deals the burden of proof. As per section 105, the burden of proving that the case of the accused falls within exceptions, of Indian Penal Code is on him. In the facts of this case, accused persons may take the benefit of those exceptions. In the said context, Chapter-7 of the Evidence Act deals the burden of proof. As per section 105, the burden of proving that the case of the accused falls within exceptions, of Indian Penal Code is on him. The said burden can only be discharged by him when he is an accused of an offence and proves the existence of the circumstances proving his case within any of the general exceptions specified in Chapter-IV of the Indian Penal Code or within any special exception or proviso contained in any other part of the Code or in any law defining the offence is upon him and on discharging the burden the Court shall presume absence of such circumstances. In view of foregoing and looking to the final report of the CBI in the charge-sheet, it is clear that Sudeep Patel, Deepak Saran, Arun Jaat and one more person along with deceased Durgesh Jaat has committed an offence of criminal trespass and breaking of the house at night, who were fired by the complainant Rajendra Patel (non-applicant No. 2). As such the act done by Rajendra Patel in retaliation causing injury by use of a firearm to Durgesh Jaat has been assumed the cause death, thus applying the Exception of sections 100 and 103, Indian Penal Code, he was not made accused in the charge-sheet. In view of legal position discussed above it is clear that the benefit of the general exceptions may be available to the accused on discharging the burden in the Court and not before the prosecution agency, however, he ought to have first join as accused, thereafter he may make out a case within the Exceptions specified under sections 100 and 103 of the Indian Penal Code, while adjudication of guilt in the trial. The said occasion is not available to the prosecution agency at the time of taking cognizance against a person of an offence who is an offender. It can be observed here that burden of proving guilt is on the prosecution agency alike to prove a civil case lies on a plaintiff, and the similar burden is not on the accused or on the defendant but they have to discharge the burden to prove their defence as specified, as per provisions of the Evidence Act. It can be observed here that burden of proving guilt is on the prosecution agency alike to prove a civil case lies on a plaintiff, and the similar burden is not on the accused or on the defendant but they have to discharge the burden to prove their defence as specified, as per provisions of the Evidence Act. In the present case if the prosecution agency is of the opinion that Rajendra Patel made an assault by firearm which caused injury to Durgesh Jaat, then in such case he ought to be joined as accused, thereafter, before Court he may take a plea of the Exceptions available to him under sections 100 and 103 of the Indian Penal Code discharging burden as per section 105 of the Evidence Act, and Court may pass appropriate orders, but grant of benefit to one of the accused in lieu of right of private defence is not available to the prosecution agency including CBI. 27. In such circumstances, for taking cognizance of offence, the satisfaction recorded by the trial Court cannot be said to be illegal warranting interference by the revisional Court, that too on the ground which are not required to be examined by the revisional Court. The revisional Court while setting aside the well considered findings of the order of Magistrate has observed that he is having power under section 190 of Criminal Procedure Code but, remitted back the matter on the observation which are not required to be looked into at the stage of taking cognizance by Magistrate. However, the observation made by the revisional Court in Para 12 of impugned order is unwarranted. It may further be observed that the revisional Court on the basis of material so available on record are not supposed to exercise revisional jurisdiction while setting aside the order of the trial Court which is based upon well considered reasoning supported by the material available on record. Therefore, the revisional Court exceeded from the jurisdiction while passing the order impugned, though not conferred on him under the law as per the judgment of the Apex Court in the case of Nupur Talwar (supra). 28. In view of the forgoing discussions, order passed by the revisional Court dated 24-6-2013 is hereby set aside and the order of the Magistrate is in accordance to law, therefore, upheld. 28. In view of the forgoing discussions, order passed by the revisional Court dated 24-6-2013 is hereby set aside and the order of the Magistrate is in accordance to law, therefore, upheld. In the facts and circumstances of this case, parties to bear their own costs.