1 S.B. Criminal Misc. Petition No.1063/2007 Suresh Kumar & Ors. vs. The State of Rajasthan Dated of order : 03.03.2010 HON'BLE MR.JUSTICE MAHESH BHAGWATI Mr. Ishwar Jain, for the petitioner. Mr. G.S. Fauzdar, Public Prosecutor for the State. By way of this criminal misc. petition filed under Section 482 of Cr.P.C., the petitioners have prayed to quash the impugned order dated 07.06.2007 and 28.02.2007, whereby the learned trial court ordered to proceed against the petitioners in the offences under Sections 498-A and 406 of IPC and the revisional court vide order dated 07.06.2007 dismissed the criminal revision petition No. 61/2007 filed by the petitioners. 2. Heard learned counsel for the petitioner as also learned Public Prosecutor appearing for the State and carefully perused the relevant material including the impugned orders on record. 3. Learned counsel for the petitioner at the very outset, took me through the judgment delivered in the case of Harishchandra Prasad Mani & Ors. vs. State of Jharkhand reported in WLC (SC) Criminal 703 and contended that this is the similar case wherein the police after completion of investigation gave the Final 2 Report unoccurred and the same was accepted by the learned trial court and the same court on acceptance of the application, took the cognizance of the offences and proceeded against those very persons in whose case, Final Report was given. The facts of the instant case are akin to the facts of the case cited by the learned counsel for the petitioners. Hence, the impugned orders deserve to be quashed. 4. Learned Public Prosecutor appearing for the State has defended both the orders and stated the same to be just and proper. 5. A bare perusal of both the orders reflected that a case in the offences under Sections 498-A and 406 of IPC was registered by the police and after completion of investigation, the police filed the charge-sheet against the four accused persons and did not find any evidence against the rest of the five persons, who are the petitioners in the instant petition. During the pendency of trial, an application was filed by the complainant under Section 190 of Cr.P.C., whereupon the learned trial court vide order dated 28.02.2007 proceeded against the petitioners namely Suresh, Sunita, Pinki, Santosh and Santra for the offences under Sections 498-A and 406 of IPC. Learned counsel for the petitioner canvassed that there being no evidence against these five 3 petitioners, learned trial court arbitrarily took the cognizance of the offences against them, which deserves to be quashed. 6. Having reflected over the submissions made at the bar and carefully perused the impugned order dated 28.02.2007, it is noticed that police, after completion of investigation, filed the police report under Section 173(2) of Cr.P.C. only against four persons and rest of five accused persons who are petitioners in the case were set free. Learned trial court on application being filed under Section 190 of Cr.P.C., having considered the submissions of the witnesses found that there was ample evidence against the petitioners and learned trial court deemed just to proceed against them, which has been challenged before this Court. Learned trial court is found to have relied upon the statements of Dilip Singh, Mahadevdas, Smt. Laxmi Devi and Jayvindra etc. who supported the statements of the complainant. If the police did not file the challan against five petitioners, that does not mean that the learned trial court is barred from proceeding against them. If the evidence is sufficiently found against them on record, the learned trial court can proceed against them. Generally in the cases of cognizance, learned counsel for the accused persons use this phraseology that 'the 4 Magistrate has taken the cognizance of offence against the accused or accused persons'. I would like to make it clear that the court always takes cognizance of the offence and thereafter, see as to who the offenders really are. This observation is based on the judgment of the Hon'ble Apex Court delivered in the case of Raghubans Dubey vs. State of Bihar reported in AIR 1967 SC 1167. Learned trial court had already taken cognizance of the offences under Sections 498-A and 406 of IPC and thereafter, on the basis of statements of the witnesses namely Dilip Singh, Mahadevdas, Smt. Laxmi Devi and Jayvindra etc. the court found that there was sufficient evidence to proceed against them for the alleged offences. Learned trial court is not found to have committed any illegality. The revisional court confirmed the order of the trial court and the same is also found to be just and proper, based on cogent reasoning. I do not find any substance in the petition filed under Section 482 of Cr.P.C. by the petitioners and the same being devoid of merits deserves to be dismissed. 7. For the reasons state above, the criminal misc. petition filed under Section 482 of Cr.P.C. on behalf of the petitioners being bereft of merits stands dismissed. 5 8. The record of the lower court be send forthwith. (MAHESH BHAGWATI),J. Mak/-