R.S. Chauhan, J. - (1.) THE accused petitioner, Pratik Gautam, is aggrieved by the order dated 16.07.2005 whereby the learned Magistrate has taken cognizance against him for the offence under Section 363 IPC and Section 3 of SC/ST Act. The petitioner is also aggrieved by the order dated 25.11.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities Cases) Jhalawar, whereby the learned Judge has upheld the order dated 16/7/2005. Briefly on 27.05.2004, Narayan Lal, complainant -respondent No. 2, submitted a written report at Police station Bakani with regard to an incident that took place on the same day. In the said report he claimed that his daughter has been abducted as 7 O'clock in the evening. He further claimed that since the morning a Maruti Car, bearing registration No. RJ -17 -C -1664, being driven by the petitioner had been encircling his house. His daughter was engaged on 26.05.2004 and was due to get married on 05.06.2004. He suspects that his daughter has been abducted by Pratik Gautam and his friends. On the basis of the report a formal FIR, FIR No. 147/2004 was chalked out for offence under Section 363 IPC and under Section 3 of SC/ST Act. After a thorough investigation, the police submitted a negative final report. The complainant submitted a protest petition. The learned Magistrate recorded the statement of the complainant under Section 200, and that of his witnesses under Section 202 Cr.P.C. By order dated 16.07.2005, the learned Magistrate took cognizance of the offence under Section 363 IPC and under Section 3 SC/ST Act. Since the petitioner was aggrieved by the said order, he filed a revision petition before the learned Judge. However, by order dated 25.11.2005, the learned Judge dismissed the revision petition and upheld the order dated 16.07.2005. Hence, the present petition before the Court.
(2.) MR . M.K. Jain, the learned counsel for the petitioner, has raised the following contentions before this Court: - Firstly, after a detailed investigation the police had submitted a negative final report. However, the learned trial court has failed to consider the reasons assigned by the police for the negative final report. The learned Magistrate has not revealed his mind for disagreeing with the negative final report. Secondly, the learned Magistrate and the learned Judge have ignored that in her statements under Sections 161 and 164 Cr.P.C. the prosecutrix had clearly stated that she had left on her own with the petitioner. She was neither forced to go with him, nor she was enticed. According to the learned counsel her statements under Section 161 & 164 Cr.P.C. should have been believed by the court below. Thirdly, that according to the complainant Narayan Lal, the prosecutrix, his daughter, was 23 years old on the date of the alleged incident. Since the prosecutrix was major, no cognizance could have been taken for the offence under Section 363 IPC. The relevant offence can be abduction. Lastly, that the prosecutrix was not taken away by the petitioner on the ground that she was a member of the SC/ST. Hence, no offence under Section 3 of the SC/ST Act is made out. Therefore, the cognizance taken by the learned Magistrate is highly misplaced. According to the learned counsel, despite the legal lacunae in the order dated 16.7.2005, the learned Judge has upheld the said order. Thus, both the orders need to be interfered with. On the other hand, learned Public Prosecutor has raised the following contentions before this Court: - Firstly, although the prosecutrix had given her statement in favour of the petitioner under Section 161 & 164 Cr.P.C. but in her statement given under Section 202 Cr.P.C. she has clearly explained the circumstances under which her previous statement was given under Section 164 Cr.P.C. She has clearly stated that she was forcibly abducted by the petitioner at the point of knife. She has further claimed that when earlier her statements were recorded, she was still under threat. Thus, the earlier statement was recorded under duress. Moreover, it is not a settled principle of law that a statement under Section 164 Cr.P.C. should be believed, even if it have been contradicted by the prosecutrix in her statement given under Section 202 Cr.P.C. According to the learned Public Prosecutor the worthiness of such statement has to be adjudicated by the trial Court during a full -fledged trial. Secondly, in all frankness, and in the opinion of this Court rightly so, the learned Public Prosecutor has conceded that cognizance under Section 363 IPC could not have been taken by the learned trial Court. In fact, according to him, the cognizance should have been taken for an offence under Section 366 IPC. For according to the prosecutrix, she was abducted for the purpose of marriage. Lastly, that since the prosecutrix claims that the petitioner was well known to her even prior to the incident, obviously he would be aware of the fact that she belongs to a Scheduled Caste community. Hence, the offence under Section 3 of the SC/ST Act is prima facie made out against the petitioner. Thus, the cognizance for the offence under Section 3 of the SC/ST Act should not be disturbed.
(3.) HEARD the learned counsel for the parties and perused the impugned orders.;