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Issues: (i) whether a committal Magistrate can summon persons not sent up in the police report in a case triable exclusively by the Court of Session; (ii) whether the material on record justified summoning the petitioners, including the first petitioner and petitioners 2 to 4.
Issue (i): whether a committal Magistrate can summon persons not sent up in the police report in a case triable exclusively by the Court of Session.
Analysis: Cognizance under Section 190 of the Code of Criminal Procedure, 1973 is of the offence and not of the offender. Once cognizance is taken, the Magistrate is entitled to ascertain who the real offenders are and may issue process against additional persons if the record discloses prima facie involvement. This power is not excluded merely because the case is exclusively triable by the Court of Session. The Magistrate, however, cannot proceed on the basis of a detailed trial or collect oral evidence under Section 319 of the Code of Criminal Procedure, 1973 in the absence of recorded evidence; the power in the present situation flows from cognizance and the material already on record.
Conclusion: The committal Magistrate had jurisdiction to summon additional accused not charge-sheeted by the police, if prima facie material existed against them.
Issue (ii): whether the material on record justified summoning the petitioners, including the first petitioner and petitioners 2 to 4.
Analysis: As regards petitioners 2 to 4, the statements on record attributed to them presence at the scene and participation in the incident as part of the alleged unlawful assembly. At the stage of summoning, the Court was not required to test the evidence as if conducting a trial, and the allegations were not shown to be inherently absurd or impossible. The plea of delay in naming them was a matter for consideration at a later stage and could not defeat the process at inception. As regards the first petitioner, the material did not show his presence at the scene or his membership of the alleged unlawful assembly; the order summoning him for offences founded on such participation could not therefore stand on the material then available. The Magistrate was nevertheless required to reconsider whether separate material justified summoning him afresh.
Conclusion: The summoning of petitioners 2 to 4 was upheld, while the summoning of the first petitioner was set aside with a direction for fresh consideration.
Final Conclusion: The petition succeeded only in part. The order summoning the first petitioner was interfered with, but the order against petitioners 2 to 4 was sustained, leaving the matter to proceed accordingly.
Ratio Decidendi: In a case where cognizance is taken of an offence, the Magistrate may summon additional accused not sent up by the police if the material on record discloses prima facie involvement, even where the case is triable exclusively by the Court of Session.
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