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2011 DIGILAW 2151 (RAJ)

Saybi v. State of Rajasthan

2011-10-12

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the petitioners and the Public Prosecutor. Perused the impugned order. 2. In this case, the police had initially filed a charge sheet against accused Pappu Khan on 10.10.2006. The Court below, by the order dated 10.10.2006, proceeded to take cognizance of the offences, i.e. under Sections 498-A, 406 and 323 I.P.C. (for which the charge sheet has been filed). Since Pappu Khan was available with the Court on that date, the case was registered against him. Simultaneously, the police had filed an application tinder Section 169 Cr.P.C. for dropping of the proceedings against the present petitioners and two others. By the impugned order dated 9.1.2007, the learned Magistrate has rejected the application filed by the police under Section 169 Cr.P.C. qua the petitioners but has accepted the same for two other accused, viz. Sayar Khan and Kane Khan and the petitioners have been summoned by warrants of arrest for the aforesaid offences. It is against this order dated 9.1.2007 that the present petition tinder Section 482 Cr.P.C. has been filed. 3. Assailing the said order dated 9.1.2007, learned counsel for the petitioners submits that in this case the impugned order is ex facie illegal for the reason that the learned Magistrate has taken cognizance at once. He submits that initially the cognizance was taken on 10.10.2006 and thereafter the cognizance has again been taken by the learned Magistrate on 9.1.2007 and as such the same should be declared illegal and quashed. 4. Learned Public Prosecutor opposes the petition and submits that the impugned order which has been assailed by the present miscellaneous petition, is actually an order whereby the application filed by the prosecution under Section 169 Cr.P.C. was decided and the learned Magistrate, after due application of mind, has held that there is sufficient material to proceed against the present petitioners as well, along with accused Pappu Khan against whom the charge sheet was filed. He, thus, submits that the impugned order is not an order of second cognizance but by this order the liability of other accused apart from Pappu Khan, who are also to be prosecuted in the present case, has been fixed. 5. I have perused the impugned order and considered the arguments advanced at the bar. He, thus, submits that the impugned order is not an order of second cognizance but by this order the liability of other accused apart from Pappu Khan, who are also to be prosecuted in the present case, has been fixed. 5. I have perused the impugned order and considered the arguments advanced at the bar. In my view, the arguments advanced by the learned counsel for the petitioners that the learned Magistrate has taken cognizance on two occasions, cannot be accepted. The present order, which has been impugned in the miscellaneous petition, is actually an order whereby the application of the prosecution filed under Section 169 Cr.P.C. has been decided. The earlier order dated 10.10.2006 was actually an order whereby cognizance of the offences was taken. The law in this regard is well settled that cognizance is taken of the offences and not of the offender. 6. By the impugned order dated 9.1.2007, the petitioners have been summoned to face trial along with other accused Pappu Khan, who was charge-sheeted. As such, this order cannot be said to be an order taking second cognizance in the case. The Magistrate, who is considering the police report where the offence is triable by his Court, he can very well pass the order summoning of additional accused at any stage and he need not wait for the stage of Section 319 Cr.P.C. to be arrived at in the trial. The Hon'ble Supreme Court, in the case of M/s. SWILL Ltd. v. State of Delhi & Anr., AIR 2001 SC 2747 has laid down that restraint of Section 319 Cr.P.C. does not apply to a case wherein the offences are triable by the Court of a Magistrate. 7. In this view of the matter, there is no force in the petition and the same is dismissed. However, looking to the fact that accused Pappu Khan, Hazoor Khan and Hanif Khan are already on bail in this case, the remaining accused Saybi and Meran Khan are also directed to be summoned by bailable warrants. They will appear before the trial Court within six weeks from today and submit the bail bonds for facing trial along with the other co-accused.Petition dismissed. *******