ORDER :

Mr. Ashok Kumar Jain, J. - Present appeal is preferred under Section 14(A)(1) of the SC/ST (POA) Act aggrieved from order dated 18.05.2019 passed by learned Special Judge, SC/ST (POA) Act cases, Jhunjhunu whereby while allowing the application under Section 193 Cr.P.C., trial Court has proceeded to take cognizance against the appellants under Sections 323 and 341 read with Section 34 IPC and Section 3(2)(v) of SC/ST (POA) Act.

2. In nutshell, the facts of the case are that an FIR No. 136/2018 was registered at P.S. Gudha Gorji on written complaint dated 07.04.2018 wherein it was alleged that when complainant visited her agricultural land, crop of Gram was disturbed and when she spoke to Pokar Mal about such dispersal of crop, he assaulted and humiliated with casteist slur and abusive language. On her call, her husband reached at the spot and was also abused and assaulted. Thereafter, Banarasi Devi, Pramila Devi and Ramdhan arrived at the spot and they assaulted her and her husband. After investigation, police submitted a charge-sheet against Banarasi Devi and Pramila Devi under Sections 34 1 and 323 read with Section 34 IPC and section 3(2)(v)(a) of SC/ST Act. Thereafter on application under Section 193 Cr.P.C., learned trial Court had proceeded to take cognizance against present appellant under Sections 34 1 and 323 read with Section 34 IPC and section 3(2) (v) of SC/ST Act.

3. Learned counsel for appellant submitted that the report itself indicated that no date and time of incident was mentioned in the report. He further submitted that when respondent-complainant was examined under Section 161 Cr.P.C., then only first time she disclosed the date and time of incident. Thereafter, she was examined under Section 164 Cr.P.C. wherein also no date and time was mentioned by complainant. He further submitted that police after detailed investigation concluded that both the appellants were not involved as they were not present at the spot. He further submitted that the record clearly indicated that appellant No.1 was on duty in his Army command and a certificate to this effect was obtained by Investigating Officer which was signed by Commanding Officer who is of Lieutenant Colonel rank. He further submitted that appellant No.2 was in Jaipur at the time of incident and a copy of bus ticket and also prescription slip of doctor wherein appellant No.2 had visited to Doctor is submitted on record. He further submitted that the Investigating Officer who is a senior police officer has verified the facts regarding involvement of present appellants and after verification it was found that both appellants were not present on the spot and they were not involved in the incident. He further submitted respondent-complainant out of vengeance, deliberately implicated appellants as one of the appellants was serving in army and ultimate objective was to spoil his career. He further submitted that the first incident with regard to allegation on Pokar Mal, no one except Pokar Mal and complainant were present but thereafter, so called injured and appellant with two accused remained present, therefore no one from public had witnessed the incident. He further submitted that even if assuming the fact then police had examined independent witnesses as well and they had not corroborated the story as narrated by respondent-complainant. He further submitted that without any prima facie case, learned trial Court ignored the outcome of investigation and had proceeded to take cognisance on the basis of solitary statement of complainant or her husband which cannot be appreciated wherein counter document to rebut the presence of present appellant was available and learned trial Court had failed to appreciate the reasons as given by police for not forwarding present appellant to face trial. At last, terming the order of cognisance as bad in law, he prayed to allow the appeal by setting aside the order of cognisance.

4. Aforesaid contentions were opposed by learned