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2021 DIGILAW 439 (ALL)

Vijay Bahadur v. State Of U. P.

2021-03-22

SAROJ YADAV

body2021
JUDGMENT : Saroj Yadav, J. Heard learned counsel for both the sides. This criminal appeal has been filed under Section 14A (1) of The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against the order dated 19.12.2020 passed by Special Judge SC/ST Act/Additional District and Sessions Judge, Court No.2, Unnao in Case Crime No.30 of 2018, under Sections 363, 366 Indian Penal Code (hereinafter referred as I.P.C.) and Section 3(1) (dha) of SC/ST Act, Police Station Purwa, District Unnao, whereby the Protest application filed by the appellant was rejected. The brief facts necessary for deciding this appeal are as under:- The appellant/complainant got registered F.I.R. under Sections 363 and 366 I.P.C. and Section 3(1) (dha) of SC/ST Act, against the accused Gyan Bahadur Singh alleging that the accused enticed away the daughter of the complainant. After investigation the police submitted the final report on the basis of evidence collected. In the statement given to the Investigating Officer and also under Section 164 Cr.P.C. the victim (daughter of the complainant) stated that she has love affair with the accused/complainant and wanted to marry him. She went with the accused/complainant on her own sweet will. The victim was found major in the radiological examination report and also on the basis of the date of birth i.e. 25.06.1999. The appellant/complainant moved protest petition before the court below rejecting the final report submitted by the Investigating Officer. The learned court below after hearing the complainant came to the conclusion that protest petition does not have any force and deserves to be rejected and final report submitted by the investigating officer deserves to be accepted. Consequently, learned court below rejected the protest petition and accepted the final report. Being aggrieved by this order, the appellant/complainant have come before this Court for setting aside the order, so passed. Learned counsel for the accused/appellant argued that trial court has not considered the affidavit filed by the victim annexed as Annexure No.8 and rejected the protest petition. It has also been submitted that there is ample evidence to proceed against the accused, but the learned trial court did not consider the same. So the impugned order should be set-aside. Learned counsel for the accused/appellant argued that trial court has not considered the affidavit filed by the victim annexed as Annexure No.8 and rejected the protest petition. It has also been submitted that there is ample evidence to proceed against the accused, but the learned trial court did not consider the same. So the impugned order should be set-aside. Contrary to it learned A.G.A. has supported the impugned order and submitted that while considering the protest petition only that evidence can be considered which is a part of the case diary. The affidavit filed as Annexure No.8 is not a part of the case diary. The victim in her statement under Section 161 and 164 Cr.P.C. has stated that she herself went with the accused/complainant and she is a major girl. Considered the rival submissions and perused the documents available on record. It is well settled law that while considering the ptotest petition the court has to take into consideration only that material/evidence which is part of the case diary. The Hon'ble Supreme Court in the case of Dharam Pal and Ors. Vs. State of Haryana and Anr. 2014(3) SCC 306 , in this regard has laid down as under:- "This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court" The Division Bench of this Court in Pakhandu and others Vs. State of U.P. and another, 2001(43) ACC 1096 has laid down as under: " Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the records, in such a situation the Magistrate is not bound to follow the procedure laid down in Section 200 and 202 of the Code and consequently the proviso to section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and the material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records." Further in Surya Bhan Vs. State of U.P. and others [2008 (1) (All) JIC) 128 this court has laid down as under- "The Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200. This shows that the Magistrate while taking cognizance under Section 190(1)(b) can only rely on the police report that means evidence and material collected by the Investigating Officer during investigation. The Magistrate cannot, therefore, take into consideration any extraneous material and if he does so, he should take cognizance under section 190(1)(a) and should proceed in the matter as a complaint case." Thus it is crystal clear that while considering the protest petition the concerned Court has to act upon the material available before the Court, that is the material which is part of the case diary. Hence the argument advanced by the counsel for the appellant/complainant that learned court below did not consider the affidavit as Annexure No.8 has no force. The learned lower court has observed that victim i.e. the daughter of the complainant who was major girl did not support the version of the F.I.R. in her statement recorded under Sections 161 and 164 Cr.P.C. In light of the above, discussion the impugned order passed by the learned lower court is a well reasoned and perfectly legal order. There is no need to interfere with the impugned order. The Criminal Appeal of the appellant/complainant deserves to be dismissed. Appeal is dismissed accordingly.