PRASHANT KUMAR AGARWAL,J. - (1.) The accused-petitioner has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 5.6.2012 passed by the Additional Chief Metropolitan Magistrate No. 7, Jaipur Metropolitan, Jaipur in final report No. 205/2011 arising out from FIR 5 No. 241/2011 registered at Police Station Vishwakarma, Jaipur for the offences under Sections 363, 366, 376, 341 I.P.C. whereby the learned Court below disagreeing with the conclusions arrived at by the investigating agency took cognizance against the petitioner for the offences under Sections 363, 366 and 376 I.P.C.
(2.) Brief relevant facts for the disposal of this petition are that complainant-respondent, step father of the prosecutrix, lodged FIR No. 241/2011 on 13.6.2011 at Police Station Vishwakarma, Jaipur against the j petitioner for the aforesaid offences and during the course of investigation statements of prosecutrix were recorded under Sections 161 and 164 Cr.R.C. in which the prosecutrix did not support the allegations made in the FIR. After investigation negative final report was filed in the Court below with the finding that no incident as alleged in the FIR occurred. Respondent-complainant filed protest petition to the FR and during the course of inquiry statements of respondent and prosecutrix were recorded under Sections 200 and 202; Cr.R.C. In her statement prosecutrix levelled allegation against the petitioner for the offences under Sections 363, 366 and 376 I.P.C. and learned Court I below by way of impugned order took cognizance against the petitioner in the manner as already stated.
(3.) In support of the petition, learned counsel for the petitioner submitted as below:- (1) During the course of investigation, apart from other evidence, statement of prosecutrix was recorded under Section 164 Cr.P.C. but no allegation of any kind constituting the aforesaid offences was made by her and at the first time in her statement recorded under Section 202 Cr.P.C. such allegations were made. The statement of prosecutrix under Section 202 Cr.P.C. carries no value even at this stage of the proceedings simply by the reason that when her such statement was recorded she was under the pressure and influence of respondent-complainant. (2) It is well settled legal position that if for an incident two versions are surfaced on the basis of the statements of a witness, the statement which is favourable to the accused is to be considered in comparison to the statement which is against him. In the present case in the initial version of the incident as stated by the prosecutrix in her statement recorded only under Section 161 Cr.P.C. but also under Section 164 Cr.R.C., no allegation of any kind was levelled against the petitioner and, therefore, only the initial version of the incident is to be considered at this stage of the proceedings. The respondent, who is step father of the prosecutrix, is in habit of levelling false allegation against the petitioner and FIR No. 330/2011 was also lodged by him against the petitioner at Police Station Harmara, Jaipur with almost similar allegations. (3) The order of taking cognizance passed by a Magistrate can directly be challenged the accused under Section 397 read with Section 401 Cr.P.C. in the High Court and there is no necessity to challenge it before Sessions Judge and the present petition cannot be dismissed on the ground that the petitioner had alternative remedy to challenge the impugned order before Sessions Judge.;