1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R 1. Milakh Raj & Anr. Vs. State of Rajasthan & Anr. S.B.CR. MISC. PETITION NO.1660/2007 2. Devi Lal Vs. State of Rajasthan & Anr. S.B.CR. MISC. PETITION NO.1661/2007 DATE OF ORDER :: March 28, 2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.Pradeep Shah, for the petitioner. Mr.Ashok Upadhyaya, P.P for the State. BY THE COURT: Both these criminal misc. petitions are involved common questions of law and facts and arise out of one and same order, therefore, they are being heard and decided together by a common order. These criminal misc. petitions are directed against the order dt. 27.9.2007 passed by Sessions Judge, Hanumangarh (for short `the revisional court' hereinafter) whereby the revision 2 petition filed by the petitioners against the order dt. 2.2.2006 passed by Additional Chief Judicial Magistrate, Hanumangarh (for short `the trial court' hereinafer), was dismissed. I have heard learned counsel for the petitioners. Carefully gone through the orders passed by both the courts below. It is contended by learned counsel for the petitioners that the police did not file the charge-sheet against the present petitioners, however, trial Magistrate took the cognizance against them. It is further contended that the police filed charge-sheet against some other persons. The controversy raised in this petition stands concluded by two decisions of Hon'ble Supreme Court in M/s. SWIL India Ltd. Vs. State of Delhi, (2001) 6 SCC 670 and In Rajinder Prasad Vs. Bashir & ors., (2001) 8 SCC 522. in M/s. SWIL India Ltd. Vs. State of Delhi (supra), the Hon'ble Apex Court held as under:- “In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 Cr.P.C. would be applicable. Section 190 inter alia 3 provides that 'the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence.' As per this provision, the Magistrate takes cognizance of an offence and not of the offender. After taking cognizance of the offence, the Magistrate under Section 204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge- sheet. Further, upon receipt of police report under Section 173(2) Cr.P.C., the Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police.” In Rajinder Prasad Vs. Bashir & ors. (supra), the Hon'ble Supreme Court observed that the Magistrate has taken recourse to Chapter XIV (Sections 190 to 199) of the Code and held as under:- “Under this Section, a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as 4 accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of session, he shall commit, after compliance with the provisions of Section 207 or Section 209, as the case may be, the case to the Court of Session and subject to the provisions of the Code, pass appropriate orders. This section refers back to Section 190, as is evident from the words 'instituted on a police report' used in Section 190 (1) (b) of the Code.” In this view of the matter, in my view, I find no error, illegality or perversity in the order impugned. Both the petitions are, therefore, dismissed. [H.R.PANWAR],J. m.asif/- 5 1. S.B.Cr.Misc. Stay Petition No.1223/2007 In S.B.Cr.Misc. Petition No.1660/2007 (Milakh Raj & Anr. Vs. State of Rajasthan & Anr.) 2. S.B.Cr.Misc. Stay Petition No.1224/2007 In S.B.Cr.Misc. Petition No.1661/2007 (Devi Lal Vs. State of Rajasthan & Anr.) Date of order : March 28, 2008 HON'BLE MR.H.R.PANWAR,J. Mr.Pradeep Shah, for the petitioners. Mr.Ashok Upadhyaya, P.P. for the State. Since both the main criminal misc. petitions have been dismissed, these stay petitions also stand dismissed. (H.R.PANWAR),J. m.asif/-