taking conginzance of offence

Legally speaking, Yes.

NO! but it depends upon the facts of the case. If evidence on the recored shows presence of the acc no. 1 at the place of occurrence then magistrate rightly took cognizance.

Ravikanth ji and Vijay ji, 

Please let me know whether a magistrate can take cognizance of persons not enlisted in the charge sheet ? If yes, pl let me know the provision which allows it.

Magistrate can take congnizance but his order must be speaking order and the magistrate has to specify the reasons for taking congnizance against the accused who was not charge-sheeted.

Yes,Prabhakar right.

319.    Power to proceed against other persons appearing to be guilty of offence. –

(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 trader arrest or upon a summon, 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 subsection (1) then-

(a)      The proceedings in respect of such person shall be commenced afresh, and 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.

Suchitra

Prabhakar and Kushan Vyas have replied to your question very nicely.

Regards

no doubt magistrate has power  to summon the person but at the same time the magistrate cannot ignore the summery of investigation officer who clear the fact that the accuse no 1 was not present. Thereby u/s 319 would attract when the evidence produced in the case till then the accused no 1 should not be summoned.