1. This revision case by the petitioners is directed against the order of the First Class Magistrate, Mahbubabad Warangal District, in Cr.M.P. No. 11 of 1968 in P. R. Case No. 7 of 1967 adding the petitioners as accused Nos. 20 and 21 in the final charge-sheet and ordering nonbailable warrants for them.
2. At about 3 a.m. on 2-11-1967. at Dornakal Railway Station, there was an attack by the accused party on the prosecution party in P.R.C. No. 7 of 1967, as a result of which two persons belonging to the prosecution party died and a number of persons were injured. In the course of the investigation, a preliminary charge-sheet was filed by the Police against 21 persons and the petitioners being accused Nos. 20 and 21. Subsequently, after the completion of the investigation, the Police filed the final charge-sheet against 19 persons as accused, deleting the names of petitioners herein who figured originally as accused Nos. 20 and 21 in the preliminary charge-sheet. The case stands posted for enquiry before the First Class Magistrate, Mahbubabad, as P. R. C. No. 7 of 1967. Pending enquiry of the above case, Cr.M.P. No. 11 of 1968 has been filed by the respective wives of the two deceased persons stating that the police have omitted to charge-sheet the petitioners herein as accused Nos, 20 and 21 in the final charge-sheet though there was ample evidence and material connecting them with the offence along with the oilier accused and requesting the Court for adding them as accused Nos. 20 and 21 and proceed according to law. The application was resisted by the A.P.P.O. But overruling that objection, the lower Court ordered the petitioners herein to be added as accused Nos. 20 and 21 in the final charge-sheet and directed non-bailable warrants to be issued to them. Aggrieved by that order, the petitioners preferred this revision petition.
3. Mr. Jeevan Reddy for the petitioners contends that the Magistrate has no power to amend the final charge-sheet or to order the addition of the petitioners as accused Nos. 20 and 21 in the final charge-sheet which would, in effect, amount to the Court directing the Police to amend the final charge-sheet and cited a decision of the Supreme Court in Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117.
4. Mr. Krishna Reddy for the respondents 1 and 2 contended contra placing reliance on the decision of the Supreme Court in Raghubans Dube v. State of Bihar AIR 1967 SC 1167.
5. The short point that arises for determination in this revision petition is whether the Magistrate in the instant case has power and jurisdiction to add the petitioners herein as accused Nos. 20 and 21 in the final charge-sheet in AIR 1968 SC 117, relied upon by Mr. Jeevan Reddy, the investigation authorities after enquiry, came to the conclusion that there was no case made out for sending up the accused for trial and the protest petition filed by the prosecution party challenging the correctness of the police report, was allowed by the Sessions Judge, Bhagalpur, and the Patna High Court holding that the Court has jurisdiction to call for a charge-sheet, when it disagrees with the report submitted by the police, under Section 173(1) of the Code. The Supreme Court finally held in that case that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169, stating that no case was made out against the accused to take their trial. It was further held that the police has ample power and jurisdiction with regard to the manner and method of investigation and it is in their province to finally decide whether there was a case against the accused to take their trial. In this case, admittedly at the time when the Magistrate passed the impugned order, calling for a charge-sheet from the police, no proceeding was pending before him.
6. The facts of the present case are not similar to the facts of the aforesaid Supreme Court case. In the present case, admittedly, the police after investigation, came to the conclusion that a cognizable offence has taken place, at 3-00 A.M., on 2-11-1967 at the Doruakal Railway Station, as a result of which, two persons died and other prosecution party members received injuries and that: accused Nos.1 to 19, are responsible for the offences levelled against them. The final charge-sheet sent by the Police to the Court is, against accused Nos. 1 to 19 on the basis of which, the Court has taken cognizance of the offence and the preliminary enquiry proceedings have been started and the case is numbered as P.R.C. 7/ 1967. In those circumstances, admittedly, the Magistrate had cognizance of the offence which according to the police bus been committed by 19 persons and which according to the petitioners in the Lower Court in Cr.M.P. 11/1967 by 21 persons i.e., inclusive of the petitioners herein in this Revision Case. The Magistrate has gone into the question and on a consideration of material available including the statements of the witnesses made to the police in the course of the investigation, has come to the prima facie view that the petitioners herein must have been also responsible and hence they may be added as accused Nos. 20 and 21. The view of the Magistrate is supported by a decision of the Supreme Court in AIR 1987 SC 1167.
In the above case Sikri, J., speaking for the Bench at page 1169 rules thus:
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....
7. In the circumstances and for reasons stated above, I have no hesitation to hold that the order of the Court below is correct and there is no reason to interfere with the same. In the result, the petition fails and is dismissed