M.S. Nesargi, J.
1. This petition, filed under S 482 of the Cr. P.C., is directed against the order dated 14-10-1977 passed by the Additional Munsiff and Judicial Magistrate, First Class, Madikeri, in Criminal Case No. 2992 of 1977 allowing the request of complainant N. M. Chatticha respondent : 2, and issuing process against the petitioner directing that he should be the 3rd accused in the said case. .
2. The few facts which are necessary may be narrated as follows:
In regard to an incident that had happened at about 7-00 a.m. on 16-7-1977, the complainant had lodged information in the Napoklu Police Station. A case under Section 324 read with Section 34, I.P.C. was registered and investigated. The Napoklu police filed a charge-sheet as against two accused only. The petitioner was not one of them. The magistrate took cognizance of the offence and then issued process against the said two accused. Those two accused appeared before the Magistrate in response to the process. At that stage the complainant filed an application supported by two affidavits of two witnesses praying that process be issued against the petitioner also as he was also one of the accused complained against by the complainant when he lodged information with the police and the petitioner had not been shown as an accused in the charge-sheet, That request was allowed by the learned Magistrate after hearing both sides and he has passed the impugned order issuing process against the petitioner directing that he be made accused No. 3 in the criminal case.
3. In support of his conclusion the learned Magistrate has relied on : 1971CriLJ1266 relating to the principle that cognizance is to be taken of offences and not of offenders : AIR1960Kant237 that the Court is not bound by the final report submitted by the Police. He has reasoned that the complainant had named the petitioner also as one of the assailants in his information to the police and that averment was further supported by the two affidavits produced along with the application and, therefore, process ought to be issued against the petitioner and he should be made accused No. 3,
4. The limitations of the powers to be exercised under Section 482 of the Cr. P. C, by the High Court are laid down by the Supreme Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . The very same decision points out what is an interlocutory order hit by Section 397 (2) of the Cr. P.C. When that principle is applied, it is clear that so far as this petitioner is concerned, the impugned order cannot be an interlocutory order hit by Section 397 of the Cr. P.C. and as such, the petition under Section 482 of the Cr. P.C. is not maintainable.
5. Sri Gaurishainkar, learned Advocate appearing on behalf of the petitioner, submitted that he should be permitted to argue the case invoking the revisional jurisdiction of this Court. In view of the facts and circumstances of this case, permission is granted to Sri Gaurishankar to argue as if this petition is a revision petition.
6. Sri Gaurishankar argued that the stage at which the Magistrate had power to issue process had already passed and as such, he could not have, when moved by the complainant, exercised his power over again, because the complainant has no locus stand! to make such a motion. In support of this argument, he urged that the production of affidavits of two persons by the complainant ought not to have persuaded the Magistrate to pass the impugned order. As the Magistrate has allowed these things to happen, he has committed illegality in passing this order.
7. I am unable to agree with the contention of Sri Gaurishankar that when once a Magistrate orders issue of process against, a particular accused, he loses his power to do so against others also. When a final report is filed by the police under Section 173 of the Cr. P.C., a Magistrate is. in law,; bound to apply his mind to the report land the documents sent with it to find out whether an offence was made out to I decide whether he should or should not take cognizance of the offence. After he decides to take cognizance of the offence, he has to, in law, on the basis of the very material, decide about the issuing of process as against all the accused shown in the relevant columns of the charge-sheet or report, or some of the accused shown in the relevant columns of the charge-sheet or the report. It may be pointed out here itself that in deciding so, there is every likelihood of a Magistrate overlooking certain material available in the report submitted by the police and the documents sent with it under Section 173 of the Cr. P.C. It is also necessary to notice at this stage itself that even after submitting the final report under Section 173, Cr. P.C., the police can, in view of Section 173 (8) of the Cr. P.C., continue the investigation and obtain further evidence oral or documentary and forward the further report or reports regarding such evidence to the Magistrate. On receipt thereof, the Magistrate has to look into that and take action on such report. The only action that he can take on that is to decide whether; he should not issue process against some other persons who appear to have committed an offence in regard to which he has already taken cognizance.
8. Sri Gaurishankar nextly argued that when the Magistrate had issued process against the two accused and they had appeared before him, the only power he should have exercised was as per Section 239 of the Cr. P.C. and decide whether a charge was to be framed against these two accused or those two accused were to be charged and instead of exercising that power he has gone back to the previous stage and issued process against the petitioner.
9. Section 239 of the Cr. P.C. reads
239. If, upon considering the police report, and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record has reasons for so doing.
Plain reading of this Section shows that at the stage envisaged by Section 239 of the Cr. P.C., the Magistrate has to consider the police report and the documents sent with it under Section 173 and if necessary, according to him, make such examination of the accused already appearing before him as per the process issued by him and then decide whether a charge should or should not be framed against them. What is pertinent in this provision is that even at that stage, it is incumbent on the Magistrate to consider the police report and the documents sent with it under Section 173 over again, may be with a view to decide whether a charge should or should not be framed against the accused already appearing before him, Now the position in law would be that when the Magistrate once again considers the police report and the documents sent with it under Section 173, may be at this stage, the Magistrate comes across some material which he has overlooked earlier when issuing process, he has every power because there is no provision taking away such power of a Magistrate to issue process against a person concerned on the basis of that material which he had earlier overlooked. When he does so, he may be required to adjourn the case for consideration of the stage envisaged by Section 239 of the Cr. P.C. after the appearance of the person or persons against whom he has so issued process.
10. Though it is not so very material for the purpose of this case, it is, in my opinion, relevant to notice Section 319 of the Cr. P.C. in this connection; which reads ss follows:
319. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then -
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
Reading of the above provision shows that even when evidence is being recorded or collected in the course of any inquiry or trial of an offence, a Magistrate has power to proceed against the other persons appearing to be guilty of the offence of which he has taken cognizance and against whom the evidence collected points. Therefore, I have no hesitation in holding that a Magistrate has wide powers in issuing process at various stages after he takes cognizance of an offence or offences,
11. The aforementioned reasons ere sufficient to bring forth the extent of the powers of a Magistrate in calling upon any person appearing to be guilty of an offence, on the material before him, to appear before him,
12. Sri Gaurishankar argued that in the case on hand it is at the instance of the complainant that the Magistrate has acted and therefore, his action is illegal, I am not impressed by the reasoning, because it is immaterial whether the material that has been overlooked by the Magistrate is found by the Magistrate himself or it is pointed out to him by some person, may be the complainant himself or herself. In the impugned order, the Magistrate has referred to what is contained in the information in regard to the petitioner. He has even gone to the extent of inferring that in view of the facts and circumstances, process ought to have been issued against the petitioner and that inference by him is supported by the two affidavits of two witnesses produced at that stage by the complainant. It is no doubt true that the affidavits cannot constitute evidence within the meaning of Section 319 (1) of the Cr. P.C. But they, in my opinion, stand on a higher footing than statements recorded by the police during investigation under Section 161 of the Cr. P.C. The question as to what value should be attached to the evidence of such witnesses would arise much later in the case, but not at this stage particularly in view of the fact that the name of the petitioner was found by the Magistrate as having participated in the offence in the information itself,
13. If the provision under Section 173 (8) of the Cr. P.C. is taken into consideration, it is clear, in my opinion, that even when a trial is in progress and a police report under Section 173 (8) is received by a Magistrate, the Magistrate will have power to issue process on the basis of the material contained in such report and the documents sent with it against any other person who is not already before him as an accused. It might in law become necessary for the Magistrate to open the case so far as such person is concerned from the stage contemplated by Section 239 of the Cr. P.C. and then proceed with the trial. All that is contemplated by the other provisions of the Cr. P.C. but need not be adverted to in this connection, as they have nothing to do with the case on hand.
In view of the foregoing reasons I hold that even if the petition before me is considered in exercise of the revisional powers of this Court, it has no substance in it. Petition is dismissed.