JUDGMENT 1. - In this revision petition filed by the petitioners under Section 397/401, Cr.P.C., the petitioners are challenging order dated 16.05.2011 passed by Addl. Sessions Judge, Deedwana (District Nagaur) in Sessions Case No.2/2011, whereby, the trial Court allowed application filed under Section 319, Cr.P.C. and took cognizance of offences under Sections 363, 366 (i) and 376(2)(g), I.P.C. against the petitioners and summoned the petitioners through warrant of arrest. 2. Learned counsel for the petitioners argued that initially written FIR was filed by the complainant, in which, allegation of rape was made against Daularam s/o Rameshwar and Manoj Dabra. Thereafter, in the statement recorded under Section 161, Cr.P.C. the complainant made allegations of rape against Daula Ram and Manoj Dabra only but, in the statement recorded under Section 164, Cr.P.C. on 13.11.2010, the prosecutrix made allegation against the petitioners also along with Daula Ram and Manoj Dabra. The police after investigation filed challan against only 2 persons viz., Daula Ram and Manoj Dabra and, after filing challan, the case was committed to the Court of Sessions Judge, Merta and, ultimately transferred to the Court of Addl. Sessions Judge, Deedwana for trial where the trial is going on. 3. During trial, statement of prosecutrix was recorded as P.W.-1 and statement of Arjun Ram as P.W.-2. Thereafter, an application was filed under Section 319, Cr.P.C. by the Public Prosecutor, upon which, learned trial Court took cognizance and issued warrant of arrest for securing the presence of the petitioners. 4. Learned counsel for the petitioners submits that totally concocted story was framed by the prosecutrix because there was enmity going on in between the families of prosecutrix and petitioners but, in the investigation, it is found that the petitioners have been falsely implicated in the statement recorded under Section 161, Cr.P.C., therefore, no challan was filed and, in the Court also, the prosecutrix improved her statement from the first information report and statement recorded under Section 161, Cr.P.C. Hence, the order of taking cognizance may be quashed and set aside. 5. 5. Learned counsel for the petitioners further argued that trial Court has committed an error while issuing arrest warrant against the petitioners for securing presence after allowing application filed under Section 319, Cr.P.C. Learned counsel for the petitioner relied upon judgment of the Supreme Court in the case of Inder Mohan Goswami & Another v. State of Uttaranchal & Others, reported in AIR 2008 SC 251 , in which, it is held that Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing nonbailable warrant. 6. It is submitted by learned counsel for the petitioners that the co-ordinate Bench of this Court in S.B. Criminal Revision Petition No.423/2011, decided on 04.05.2011, while following the judgment of the apex Court in Inder Mohan Goswami's case (supra) passed order whereby nonbailable warrants issued against the petitioners (therein) were converted into bailable warrants. It is therefore prayed by learned counsel for the petitioners that in this case also even if this Court comes to the conclusion that there is evidence for taking cognizance under Section 319, Cr.P.C., then, the presence of the accused may be ordered to be secured by way of bailable warrants instead of arrest warrants. Learned counsel for the petitioner, in support of his prayer, placed reliance upon judgment of this Court reported in 2008 WLC 517 , Babu Singh v. State of Rajasthan & Another and, another judgment reported in 2011 (3) WLC 65 , Suresh Kumar v. State of Rajasthan & Another , in which, it is held that Court must ascertain identity of the person before putting him to trial and process must be issued on sifting evidence and not on ipse dixit that few witnesses have stated against him; and, while deciding the said case, the Court modified the order of taking cognizance and directed the trial Court to secure the presence of the petitioners by way of issuing bailable warrants. 7. Learned counsel for the petitioner prayed that in this case also even if the Court comes to the conclusion that cognizance has rightly been taken, then, for securing the presence of the petitioners the trial Court may be directed to issue bailable warrants instead of arrest warrant and order of trial Court may be modified to this extent. 8. 7. Learned counsel for the petitioner prayed that in this case also even if the Court comes to the conclusion that cognizance has rightly been taken, then, for securing the presence of the petitioners the trial Court may be directed to issue bailable warrants instead of arrest warrant and order of trial Court may be modified to this extent. 8. Per contra, learned counsel for the State vehemently opposed the prayer of the petitioners for quashing order of cognizance and further submitted that there is material available on record including the statement of the prosecutirix recorded under Section 164, Cr.P.C. and statement recorded during the trial that there is specific allegation against the present petitioners for committing the offence, therefore, the order impugned does not suffer from any illegality. 9. I have considered the rival submissions made by both the parties. 10. In my opinion, there is material evidence available on record to take cognizance against the petitioners for alleged offences. This Court cannot lose sight of the fact that in the investigation conducted by the police no challan was filed against the petitioners because testimony of the prosecutrix was not supported by any other evidence; but, later on, in her statement recorded in the trial, it is found that prosecutrix is alleging something against the petitioners also but fact remains that in the investigation none of the other witnesses supported the testimony of the prosecutrix and prosecutrix herself in the first information report made allegations against two persons only for committing rape. 11. It is true that in the statement recorded under Section 164, Cr.P.C., the prosecutrix improved her statement, therefore, after perusing the statement of the prosecutrix recorded under Section 164, Cr.P.C. as well as statement recorded by the trial Court, I am not inclined to interfere in the order of taking cognizance against the petitioners for alleged offences. However, I have considered the prayer made by counsel for the petitioners for modifying the order of securing presence of the petitioners by way of arrest warrants. 12. In the case of Inder Mohan Goswami & Another v. State of Uttaranchal & Others, AIR 2008 SC 251 (supra), the Supreme Court observed as follows : "Personal liberty and the interest of the State Civilised countries have recognised that liberty is the most precious of all the human rights. 12. In the case of Inder Mohan Goswami & Another v. State of Uttaranchal & Others, AIR 2008 SC 251 (supra), the Supreme Court observed as follows : "Personal liberty and the interest of the State Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice -liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 48. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when : * it is reasonable to believe that the person will not voluntarily appear in court; or * the police authorities are unable to find the person to serve him with a summon; or * it is considered that the person could harm someone if not placed into custody immediately. 50. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. 51. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. 51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. 52. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. 53. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant." 13. The co-ordinate Bench of this Court in the case of Suresh Kumar v. State of Rajasthan & Another (supra), after considering number of judgments of Hon'ble Supreme Court, made the following adjudication : "23. Keeping these guidelines in mind, unless there are very strong reasons for issuing non-bailable warrants of arrest, initially the alleged offender should be called through summons; in case he fails to appear before the court, then he should be called through bailable warrants of arrest; in case he, still, refuses to appear and to abide by the direction of the court, only then, non-bailable warrants of arrest should be issued against him. In case, non-bailable warrants of arrest are being issued, the learned trial court should indicate its reasons for disturbing the personal liberty of the alleged offender. In case, non-bailable warrants of arrest are being issued, the learned trial court should indicate its reasons for disturbing the personal liberty of the alleged offender. After all, personal liberty has to be protected and promoted and cannot be cribbed, cabined and confined in a mechanical manner." 14. After perusing the above judgments, I am in full agreement with the view expressed by co-ordinate Bench of this Court that at the time of taking cognizance under Section 319, Cr.P.C., at the first instance, the trial Court should pass order after considering entire facts and evidence recorded in the trial. Straight away, issuing non-bailable warrant is not proper. Unless any special circumstances have arisen in the case with regard to seriousness of the case. In this view of the matter, while following the adjudication made by Hon'ble Supreme Court and co-ordinate Bench of this Court, this revision petition is partly allowed. Order of taking cognizance by the trial Court vide order dated 16.05.2011 is maintained. However, order of securing presence of the petitioners by way of issuing arrest warrants is modified and it is ordered that the petitioners shall appear before the trial Court on 10.08.2011. Upon their appearance, the trial Court shall release them upon each of them executing personal bond in the sum of Rs. 20,000/- and furnishing sureties for a sum of Rs. 10,000/- each of two female members of their family, either mother/sister/sister-in-law or close female relative of each of the accused. The petitioners shall cooperate with the trial.Petition partly allowed. *******