K. S. LODHA, J. - (1.) THE four petitioners; Onkarlal and others, have challenged the order of the learned Judicial Magistrate No. 1, Udaipur dated 28. 7. 1981, by which cognizance of offence under Section 366 I. P. C. had been taken against the petitioners as also one Vinod.
(2.) I have heard the learned counsel for the petitioners and the learned Public Prosecutor and have gone through the record. Only two contentions have been raised by the learned counsel for the petitioners. The first contention is that except the statement of prosecutrix Smt. Asha u/sec. 164 Cr. P. C. There is no other material on the record on which the learned Magistrate could have taken cognizance of the offence U/sec. 366 I. P. C. against the present petitioners and that statement also is quite contrary to what she had stated before the police u/sec. 161 Cr. P. C. The second contention in the alternative is that if the first contention is not accepted and the order taking cognizance is not quashed then the petitioners may be granted anticipatory bail u/sec. 438 Cr. P. C So far as the first contention goes, when according to the contention of the learned counsel for the petitioners there is atleast the statement of Smt. Asha to show that these petitioners were also involved in the offence u/sec. 366 I. P. C. alongwith the co-accused Vinod. What should be the value of the statement u/sec. 164 Cr. P. C. cannot be determined at this stage and in the presence of that statement it cannot be said that there was absolutely no material before the learned Magistrate to take cognizance of the offence against the petitioners. The veracity of the material can be challenged by the accused at the time of the fram-ing of the charge and it will not be proper for this Court to express any opinion on the merits at this, stage. Therefore, the first contention must fail. So far as the second contention goes, looking to the circumstances of the case, the relation of the present petitioners with Shri Vinod, the co-accused, and the fact that the incident had taken place somewhere in February, 1981, I am of the opinion that the petitioner may be granted anticipatory bail. No useful purpose would be served by getting them arrested. The Revision, as such, is dismissed but the prayer under Section 438 Cr. P. C. is accepted and it is directed that the learned Magistrate shall only issue bailable warrants in the sum of Rs. 3,000/- against each of the petitioner and the warrants of arrest already issued shall be withdrawn. .;