1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Miscellaneous Petition No.330 of 2001. Dronacharya son of Shri Ghesa Ram & Others VERSUS The State of Rajasthan through P.P. Date of Order :::: 19/02/2009. Hon'ble Mr. Justice Bhanwaroo Khan Mr. Anoop Dhand, Counsel for the Petitioners Mr. N.R. Saran, Public Prosecutor for the State By the Court : On the basis of the “Parcha-bayan” of Ganesha Ram son of Shri Moti Ram, the Police Station, Losal, Sikar, registered a case for the offence under Sections 147, 148, 149, 341, 323 and 379 of the I.P.C. against the persons, named in the F.I.R., but the Police after investigation did not submit challan against the accused- persons viz., Dronacharya, Pyare Lal, Ramdev and Bhanwar Lal, and rests were put for trial before the Judicial Magistrate No.1, Sikar. 2 The trial Court took cognizance against the accused-persons, named in the challan, but injured Gulabi Devi submitted an application dated 30.05.1998 praying therein that the accused persons viz., Dronacharya, Pyare Lal, Ramdev and Bhanwar Lal, whose names have been removed by the Police in the capacity of accused, who were also present and they took part in the criminal activities, their names also find place in the statements recorded by the Police under Section 161 of the Cr.P.C., so they be also summoned, as an accused persons. The trial Court vide its order dated 20.10.2000 summoned them for the commission of offence, as above mentioned, as the cognizance had already been taken by the trial Court. An unsuccessful revision preferred by the petitioners came to be decided by the Additional District & Sessions Judge No.1 Sikar vide its order dated 11.01.2001, against which order this criminal miscellaneous petition has been preferred by the petitioners. Heard learned counsel for the petitioners as well as the learned Public Prosecutor for the State and 3 also perused the material available on record. The learned counsel for the petitioners pleaded that without recording the statements of the witnesses or following the procedure, as mentioned under Section 319 of the Cr.P.C. the trial Court was debarred from taking cognizance against the accused-persons and, thus error of law has been committed by the Lower Court as well as revisional Court because the learned Magistrate has not followed the procedure provided under the Cr.P.C. Per contra, the learned Public Prosecutor for the State pleaded that the cognizance was taken by the Court and thereafter those persons, who have been left out by the Investigating Agency, though the name of these persons figured in the statements recorded under Section 161 of the Cr.P.C.. were only summoned and no question of cognizance arises because it was already taken by the Court. The Court was not under obligation to wait upto the stage of Section 319 of the Cr.P.C., therefore, no illegality is found in the order passed by the Courts below. The application submitted by the injured Gulabi Devi reveals that the names of these persons are found in the statements recorded by the Police under 4 Section 161 of the Cr.P.C. then it was obligatory for the Police to array them accused-persons. But when the Police failed to do so, the learned Magistrate was well within his statutory powers to summon them without resorting to the procedure envisaged in Sections 200-202 and 319 Cr.P.C. The statements of the witnesses clearly reveal their participation in commission of the offence. The learned Magistrate has not left without any authority, in case the Police do not submit the challan against all the accused-persons, though their names are figuring in the statements of the witnesses recorded under Section 161 of the Cr.P.C. The Court after perusing the statements, if found that these persons participated in the commission of the crime, but when the Police failed to array them in the capacity of accused without there being any ground, the learned Magistrate can very well summon them to face the trial, along with other co- accused arrayed against whom the challan was filed by the Police. The learned Magistrate by summoning these accused for commission of the offence has not committed any illegality or there is no error of law in the order passed by the learned Courts below. 5 There is no merit in this miscellaneous petition and it deserves to be dismissed. Consequently, this miscellaneous petition is dismissed. (Bhanwaroo Khan) J. ashok/ 6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Miscellaneous Stay Application No.247/2001 IN S.B. Criminal Miscellaneous Petition No.330 of 2001. Dronacharya son of Shri Ghesa Ram & Others VERSUS The State of Rajasthan through P.P. Date of Order :::: 19/02/2009. Hon'ble Mr. Justice Bhanwaroo Khan Mr. Anoop Dhand, Counsel for the Petitioners Mr. N.R. Saran, Public Prosecutor for the State By the Court : Consequent upon dismissal of the main petition, the stay application, filed therewith does not survive and the same is also dismissed. Bhanwaroo Khan, J.