Pratik Gautam vs The State and Another

R.S. Chauhan, J.—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 u/s 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 u/s 363 IPC and u/s 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 u/s 200, and that of his witnesses u/s 202 Cr.P.C. By order dated 16.07.2005, the learned Magistrate took cognizance of the offence u/s 363 IPC and u/s 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.

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 u/s 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 u/s 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 u/s 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 u/s 161 & 164 Cr.P.C. but in her statement given u/s 202 Cr.P.C. she has clearly explained the circumstances under which her previous statement was given u/s 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 u/s 164 Cr.P.C. should be believed, even if it have been contradicted by the prosecutrix in her statement given u/s 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 u/s 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 u/s 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 u/s 3 of the SC/ST Act is prima facie made out against the petitioner. Thus, the cognizance for the offence u/s 3 of the SC/ST Act should not be disturbed.

Heard the learned counsel for the parties and perused the impugned orders.

A bare perusal of the statement given by the prosecutrix u/s 202 Cr.P.C. clearly reveals that she has explained the circumstances under which she had given the previous statement u/s 161 & 164 Cr.P.C. She has further stated that she was abducted at a knife point and she was threatened by the petitioner. It is too early in the day for this Court to enter into the controversy with regard to the veracity of the statement given by the prosecutrix. After all, the veracity and the validity and the worthiness of the statement would have to be decided by the learned trial Court after a full-fledged trial.

A bare perusal of the order dated 16/7/2005 also reveals that the learned Magistrate has considered the statement of the prosecutrix u/s 164 and 202 Cr.P.C. It is only after considering her statements u/s 202 Cr.P.C. and while disagreeing with the view of the investigating agency that he has proceeded to take cognizance of the offences. Therefore, the first contention raised by the learned counsel that no reason has been assigned by the learned Magistrate for disagreeing with the negative final report is unsustainable.

As far as the cognizance for the offence u/s 363 IPC is concerned, Section 363 prescribes punishment for kidnapping. The term "kidnapping" has been defined in Section 359 IPC. Section 361 IPC further defines "kidnapping from lawful guardianship." A combined reading of Sections 359 and 361 IPC clearly reveals that the person who has been kidnapped ought to be under sixteen years of age if a male, or under eighteen years of age if a female. In the present case, the prosecutrix is admittedly twenty three years old. Therefore, obviously the offence of "kidnapping" has not occurred, even if the statement of the prosecutrix given u/s 202 were to be believed prima facie. Moreover, in her statement u/s 202 Cr.P.C. she has claimed that she was abducted for the purpose of marriage. Obviously, the offence u/s 366 IPC is prima facie made out against the petitioner. Therefore, the learned Magistrate ought to have taken cognizance of offence u/s 366 IPC, instead of offence u/s 363 IPC. To this limited extent the contention raised by the learned counsel for the petitioner deserves to be accepted.

As far as the Section 3 of the SC/ST Act is concerned, according to the prosecutrix the petitioner had known her prior to the incident. Thus obviously, he would have known that she belongs to a Scheduled Caste Community. Hence, the contention that she was not abducted on the basis of the fact that she belonged to a scheduled caste community is highly misplaced. What is the basis of the offence committed u/s 366 qua the person belonging to the scheduled caste community is again an issue to be tried by the trial Court. It would be pre-mature for this Court to comment with regard to the commission of offence u/s 3 of the SC/ST Act. Hence, prima facie cognizance taken for the offence u/s 3 of the SC/ST Act is legally sustainable.

For the reasons given above, this petition is partly allowed and the cognizance order dated 16/7/2005 is partly modified to the extent that the cognizance should have been taken for offence u/s 366 IPC and not u/s 363 IPC. Rest of the order with regard to the cognizance of offence u/s 3 of the SC/ST Act is hereby upheld. Consequently, the order dated 25.11.2005 is also partly modified as indicated above. The petition is partly allowed.