R.S. Chauhan, J. - (1.) The petitioners are aggrieved by the order dated 23.02.2010, passed by the District and Sessions Judge, Jaisalmer, whereby the learned Judge has issued process against the petitioners under Section 319 Cr.P.C. The brief facts of the case are that on 18.07.2009, the complainant, Sheru Khan, had submitted a written report before the Police Station Phalsund, wherein he claimed that in the night of 16.07.2009, while he and his family members were sleeping in his house, some people came in a Scorpio Jeep. These persons were armed with deadly weapons. These persons, included the present petitioners, not only looted his house, but also kidnapped his daughter-in-law, Smt. Naziro Khan.
(2.) On the basis of the said report, the police chalked out a formal FIR, FIR No.30/2009 for offences under Sections 143, 457, 380, 354, 323, 365, 363 IPC. After a thorough investigation, while the police submitted the charge-sheet against Safi Khan, it did not submit the charge-sheet against the present petitioners. However, during the course of trial, evidence started trickling in about the involvement of the present petitioners in the alleged crime. Therefore, an application under Section 319 Cr.P.C. was moved for issuance of process against the present petitioner. Vide order dated 23.02.2010, the learned Judge issued the process and took cognizance against the petitioners for offences under Sections 363 and 366A IPC and issued bailable warrants against them.
(3.) Hence, this petition before this Court. Mr. L.D. Khatri, the learned counsel for the petitioners, has vehemently contended that the evidence was already available when the investigation was carried out. Yet, still the police did not file any charge-sheet against the present petitioners. A similar set of evidence has been recorded by the trial court. Thus, there is no reason for exercising the power under Section 319 Cr.P.C by the trial court.;