SURESH KUMAR Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) This misc. petition has been filed by the accused petitioner against the order dated 4.4.1997 passed by Civil Judge (Jr. Division) & Judicial Magistrate, Nainwa whereby cognizance has been taken against the petitioner of the offence under Sec. 19/54 Excise Act. Heard learned counsel for the petitioner and learned public prosecutor.

(2.) Learned counsel for the petitioner submits that the petitioner is not named in the charge sheet and, therefore, cognizance could not have been taken against him by the trial court without recording evidence.

(3.) The Magistrate takes cognizance of the offence and not the offender. 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 by the police some other persons are involved then it is his duty to proceed against those persons. It is within the power of the Magistrate to summon anyone who on the basis of the statements recorded under Sec. 161 Cr.P.C. and the documents submitted under Sec. 173 Cr.P.C. appears to him to be prima facie guilty of the offence. Therefore, when a Magistrate takes cognizance under Sec. 190(1)(b) Cr.P.C. upon a police report he is not restricted to issue process only to the persons charged by the police and he can also summon those whose names are not mentioned in the charge sheet provided he finds sufficient evidence against them in police papers.