VIJAY KUMAR VYAS,J. - (1.) Petitioners by way of this revision have assailed order dated 18.7.2016 passed by learned Additional Sessions Judge No. 2, Sikar in Sessions Case No. (121/2014)(20/2014)95/2015 CIS No. 58/2015, whereby on the application of complainant, learned Additional Sessions Judge No. 2, Sikar took cognizance under Section 193 Cr.P.C. against the petitioners for offences under section 147, 341, 323, 325, 307 and 452 read with Section 149 I.P.C. and summoned them.
(2.) In brief, facts of the case are that complainant i.e. private respondent herein, submitted a report before SHO, Police Station Laxmangarh, District Sikar on 5.7.2014 alleging inter alia that when he came to police station for reporting the incident occurred on 4.6.2014, Radheysham Jat threatened him not to lodge FIR otherwise he would be done away. Whereupon, he went back to his house. On calling by police, he came today at police station and lodged FIR about the incident occurred with him on the day before. When he went back to his village after medical examination at about 3.45 PM, Hari Ram, Rajendra, Vijaypal, Rakesh, Mahipalm, Bajrang Lal, Sunil, Vikas, Lali and Radheyshyam came there armed with lathis and iron rods, riding on two tractors and entered into his house. Immediately, Hari Ram gave a blow of iron rod on his nephew Neeraj who became unconscious. When his mother came there, Vijaypal gave a blow of lathi on her shoulder. On hue and cry, many people rushed to his house. The accused warned them to hand over Jagdish (complainant), failing which, they would kill all his family members. Thereupon, complainant along with his brother - Prema Ram and ladies tried to intervene, they gave beatings to all of them. On this information, FIR No.174/2014 was registered. After investigation, police submitted chargesheet for offences under section 341, 323, 325, 307 and 452 read with Section 34 I.P.C. against Vijaypal, Hari Ram, Rajendra and Rakesh. Complainant moved an application dated 25.8.2014 under Section 190 Cr.P.C. before learned Magistrate with a prayer to take cognizance against all other accused named in the FIR for offences under section 147, 452, 323, 325, 307 and 120B IPC. After hearing, learned Magistrate vide order dated 16.9.2014 rejected the application observing that sufficient prima facie evidence is not available for taking cognizance as prayed for. This order dated 16.9.2014 was not assailed by any party and attained finality. On committal, private respondent again moved an application on 27.9.2014 under Section 193 Cr.P.C. on the basis of same facts and circumstances and made the same prayer for taking cognizance against all the accused named in the FIR. Learned trial court vide order dated 18.7.2016 partly allowed the application and took cognizance against accused Vijaypal, Hari Ram, Rajendra and Rakesh for offence under Section 147 I.P.C. and also took cognizance against accused petitioners Mahipal and Bajrang Lal for offences under section 147,341, 323, 325, 307 and 452 read with Section 149 I.P.C. and summoned them.
(3.) Learned counsel for the petitioners submitted that the impugned order has been passed without jurisdiction, contrary to the material available on record and against law. When earlier application under Section 190 Cr.P.C. containing the same prayer was rejected and the Magistrate refused to take cognizance as prayed for, which also attained finality as no revision was preferred by either of the parties, second application with the same relief was not maintainable before the Sessions Court. Learned counsel contended that it amounts to take second time cognizance by the Court of Sessions which is not permissible as per Dharam Pal and Others v. State of Haryana and Another, (2014) 3 SCC 306 . However, when the Magistrate has actively considered the prayer and refused to take cognizance, rejected the prayer and committed the case to the Court of Sessions, the latter has no power to take fresh cognizance of the offence inasmuch as cognizance of offence can be taken only once. In support, he has referred Balveer Singh and Another v. State of Rajasthan and Another, (2016) 6 SCC 680 .;