1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Prahlad Singh Vs. The State of Rajasthan & Ors. (S.B. Criminal Revision Petition No.1258/2009) Date of Order :- 09.09.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Dileep Sinsinwar, for the petitioner. Mr.Javed Chaudhary, Public Prosecutor. *** The petitioner has challenged the order dated 08.07.2009 passed by the learned Special Judge, Dacoity Affected Area, Bharatpur whereby the learned Judge had quashed and set aside the cognizance against the present accused-respondents namely Hoob Lal & Suresh. In a nutshell the facts of case are that on 06.11.2005, the complainant-petitioner, Prahlad Singh submitted a written report at Police Station Nadbai district Bharatpur. On the basis of written report, a FIR, FIR No.530/2005 for the offences under Sections 143, 341, 323 IPC was registered. In the written report, the complainant stated that when he along with his father were sitting at the “Bore”, Hoob Lal & Suresh along with other accused persons came towards them. They were carrying lathies, pharsas (Axe) in their hands. After abusing the petitioner and his father, they 2 started beating them. Hoob Lal hit him on the elbow and fractured his arm. Suresh hit him with a lathi on his left hand. Murari and Bihari also hit him on his back after he fell down. These persons also assaulted his father. He further stated in the written report that a dispute between him and accused- respondents has been going on. It is for this reason that these persons assaulted him and his father. After the usual investigation, the police submitted a charge-sheet against the accused persons namely; Ram Murari, Ram Bihari, Hari Singh and Remesh, but not against the present accused-respondents. Therefore, the complainant immediately filed an application under Section 190(2) Cr.P.C. The learned trial court after hearing both the parties, vide order dated 25.07.2009, took cognizance against the accused- respondents for the offence under Sections 148, 323, 341, 325 IPC and summoned them through bailable warrants. The accused-respondents being aggrieved by the order dated 25.07.2007, preferred a criminal revision petition before the learned revisional court. Vide order dated 08.07.2009, the learned revisional court quashed and set aside the order dated 25.07.2009. Hence, this revision petition before this court by the complainant. Mr. Dileep Sinsinwar, the learned counsel for the petitioner, has contended that there was sufficient evidence in 3 the statement of the complainant for the police to file a challan against the accused-respondents. However, for the reasons best known to the police, they did not file a challan against them. Therefore, the complainant moved an application under Section 190(2) Cr.P.C. Upon the said application, the learned trial court took cognizance against the accused-respondents. Since there is sufficient evidence against the accused-respondents, the learned revisional court is not justified in quashing and setting aside the cognizance taken against the accused-respondents. On the other hand, Mr. Javed Chaudhary, the learned public prosecutor, has contended that it is a settled position of law that in case challan has not been filed against the named co-accused person, then the cognizance can be taken only under Section 319 of Cr.P.C. So far the stage of Section 319 of Cr.P.C. has not been reached. Therefore, he has supported the impugned order. It is, indeed, trite to state that in case the the police does not file a challan against the named co-accused person, then the learned trial court cannot take cognizance against such persons until unless an application under Section 319 of Cr.P.C. is filed by the prosecution. It is equally well settled that an application under Section 319 of Cr.P.C. can be filed only after the testimonies of witnesses have been recorded and prima facie a case is made out against those persons against 4 whom no challan had been filed. Admittedly, in the present case, the testimony has not been recorded by the trial Court. Therefore, the learned revisional court was justified in quashing and setting aside the cognizance order. In this view of the matter, there is neither any illegality, nor any perversity in the impugned order. Hence, the revision petition is devoid of any merit. It is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-