The Allahabad High Court while dismissing a petition said the statement made by the prosecutrix/victim under Section 164 CrPC before the Magistrate stands on a high pedestal and sanctity is attached on such statement recorded during the course of investigation, than that of her statement recorded under Section 161 of the Code by the Investigating Officer.
A Single Bench of Justice Ram Manohar Narayan Mishra passed this order while hearing a criminal revision filed by Abbas and Another.
The criminal revision has been preferred against the order dated 04.08.2023 passed by the Judicial Magistrate IIIrd Saharanpur, whereby the protest petition filed by the revisionist against final (closure) report submitted by the police after investigation in Case under Section 366 and 376 IPC has been dismissed and final report has been accepted.
The facts of the case are that the informant Abbas lodged an FIR at PS Gagalhedi, District Saharanpur on 14.01.2021 under Section 363 IPC against one Taushif with averments that on 09.01.2021 his minor daughter aged around 14 years was enticed away by accused Taushif, son of Hazi Julfan, and his daughter is student of Class 9.
He has been searching for his daughter for three days and now he came to know that Taushif had kidnapped his minor daughter by enticing and taking her away. The informant came to the place of Hazi Julfan, the father of Taushif, where his father and family members misbehaved and threatened him that his daughter will not be handed over to him.
In the transfer certificate of Class 9 of the victim issued by Siyaram Intermediate College, Gagalhedi, Saharanpur, her date of birth is recorded as 30.06.2006 and accordingly she was of fourteen and half years of age on the date of incident and minor, the victim was recovered by police on 15.01.2021 at 10:30 am.
The police placed reliance on the statement of the victim under Section 164 CrPC and affidavits of Abbas and Abdul Rahman, the father and Phufa of the victim submitted final report in favour of the accused persons with finding that their complicity in the disappearance of the victim was not established, and she had left her home on her own as she became disturbed on being rebuked by her parent and went to the place of her bua alone and went back to her home on her own volition.
However, on the turn of events, the victim herself filed a protest petition before the court of Magistrate against the final report submitted by police in favour of accused persons namely Tausif, Wasim, Farman, Danish and Tasleem wherein she acknowledged and placed reliance on her statement under Section 161 CrPC recorded by Investigating Officer and has deviated from her statement recorded by Magistrate under Section 164 CrPC.
She stated that her father reconciled the matter after 15 days of the incident with the accused persons, in view of some inducement or pressure and he exerted pressure on her to depose in favour of the accused persons before the Magistrate and for that reason she had given her statement before the Magistrate under Section 164 CrPC in favour of accused persons.
She also refused to get herself medically examined on instructions of her father. She clarified that her statement under Section 164 CrPC on the basis of which the police has filed a final report in favour of accused persons is not a free statement. In fact, her statement under Section 161 CrPC is a real and true statement and on that basis, police should have submitted a charge sheet against the accused persons.
Now the accused persons are threatening her and she apprehends some unforeseen incident may occur. In protest petition she has prayed for setting-aside the final report dated 02.12.2021 and summoning the accused persons under Sections 366 and 376-D IPC and Section ¾ of POCSO Act, after taking cognizance under Section 190 (1)(b) CrPC.
The Magistrate in the impugned order dismissed the protest petition filed by the victim and accepted the final report filed by the police after investigation in the case on the ground that the victim has exonerated the accused persons in her statement under Section 164 CrPC recorded by Magistrate.
Feeling aggrieved by the order dated 04.08.2023 the informant has filed the criminal revision. The informant and victim has jointly filed the criminal revision with prayer to set-aside the impugned order passed by the Magistrate and the matter be remitted to the Magistrate to decide the protest petition a fresh and summon the respondent No 2 for facing trial.
The Court observed,
In the case, the Magistrate after placing reliance on closure report filed by the police after conclusion of an investigation, adopted Ist course as stated in Pakhandu (supra) and accepted closure report submitted by police in favour of the accused persons whose name has been surfaced during investigation, placing reliance on statement of prosecutrix under Section 164 CrPC and affidavits of the father and uncle (phupha) of the prosecutrix during the course of investigation which was made part of investigation.
In the case for the prosecutrix though inculpated the named accused Taushif and three other accused persons whose name surfaced during investigation in her statement under Section 161 CrPC recorded by Investigating Officer at the early stage of investigation when she was recovered by police, she exculpated all the accused persons in her statement under Section 164 CrPC recorded by Judicial Magistrate during the course of investigation and stated that she had left her home on being rebuked by her parent, and visited the place of her father’s sister where she stayed for three days and came back to her home subsequently. This statement was supported by the father of the prosecutrix and her Phupha Abdul Rahman by filing an affidavit during investigation.
Abdul Rahman stated in his affidavit that the victim visited his place alone and remained there for three days during the period of her disappearance. However, when closure report was filed by the police, the prosecutrix who was minor at the time of incident filed a protest petition before the court, wherein she’s placed reliance on her statement under Section 161 CrPC recorded by police and stated that her statement under Section 164 CrPC was tutoring an external pressure.
“With foregoing discussion the court does not find any illegality, irregularity or perversity in the impugned order passed by the Magistrate, whereby the final report filed by the police after investigation in the case in favour of accused persons placing reliance on statement of the prosecutrix recorded under Section 164 CrPC as well as affidavits filed by father and uncle of the victim, has been accepted and protest petition filed by the prosecutrix has been dismissed.
The court below has made an observation that when she was presented for medico legal examination. She refused to undergo medico legal examination. She has been changing her stand at different stages. No presumption can be drawn that the statement of prosecutrix recorded by the Magistrate before the court suffers from falsehood or external pressure. The impugned order is within bounds of law and no illegality, irregularity or perversity is found therein. The revision is devoid of merit and deserves to be dismissed,” the Court further observed while dismissing the petition.