Banwari Lal Sharma, J. - (1.) THIS revision petition is listed for admission today but with the consent of learned counsel for the petitioners and the learned Public Prosecutor the revision petition is being finally disposed of.
(2.) HEARD Mr. Mahesh Bora, learned senior counsel with Mr. Nishant Bora, appearing for the petitioners and learned Public Prosecutor and perused the impugned order dated 16.11.2013 passed by learned Special Judge SC/ST (Prevention of Atrocities) Act cases, Bikaner (hereinafter referred to as 'the learned trial court') in Sessions case No. 13/12 whereby the learned trial Court, while invoking the provisions under Section 319 of Cr.P.C., after taking cognizance against the petitioners under Sections 120(B), 363, 366, 366 -A, 376 Indian Penal Code and Sections 3(1)(2), 3(2)(5) SC/ST (Prevention of Atrocities) Act cases and summoned them through warrant of arrest. Learned Senior counsel Mr. Bora has submitted that prosecutrix, in her police statement recorded on 16.02.2012, did not name the present accused -petitioners. She made allegations only against Om Prakash Nai and Kamla. Thereafter in her statement recorded under Section 164 Cr.P.C. on 23.02.2012, she improved her version and leveled allegations against the present petitioners also regarding kidnapping and committing rape. He further submitted that for invoking provisions under Section 319 Cr.P.C. court has to see that available evidence is sufficient or not for convicting the person against whom cognizance is proposed. Without considering this fact learned trial court took cognizance against the present petitioners which is not sustainable. He also submitted that in like cases where cognizance is being taken under Section 319 Cr.P.C., arrest warrant should not be issued directly. Instead of arrest warrant accused should be summoned through summon or Bailable Warrant. Learned senior counsel relied upon the judgments delivered in the cases of Hardeep Singh etc. etc. v. State of Punjab & Ors. etc. etc. reported in : (Criminal Appeal No. 1750, 1751 of 2008, Special Leave Petition(Crl.) Nos. 9184 of 2008, 5724, 5975, 5331, 9157 of 2009, 7209, 9040 of 2010 and 4503 -4504 of 2012 decided by Hon'ble Supreme Court on 10.1.2014) and Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors reported in : AIR 2008 Supreme Court 251.
(3.) PER contra learned Public Prosecutor Mr. Mahipal Bishnoi supported the impugned order and submitted that prosecutrix, in her statement under Section 164 Cr.P.C. and before the trial court clearly stated that the statement which she deposed before the court was also stated before the police but the Investigating Officer did not record her statement as she stated before him. This fact is subject to trial after putting the accused for trial.;