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2025 DIGILAW 132 (ALL)

Abbas v. State of U. P.

2025-01-27

RAM MANOHAR NARAYAN MISHRA

body2025
JUDGMENT : Ram Manohar Narayan Mishra, J. 1. Instant Criminal Revision has been preferred against the order dated 04.08.2023 passed by learned Judicial Magistrate IIIrd Saharanpur on Misc. Application No.02 of 2022 Abbas Vs. Taushif , whereby the protest petition filed by the revisionist against final (closure) report submitted by the police after investigation in Case Crime No.17 of 2021, under Section 366 and 376 IPC has been dismissed and final report has been accepted. 2. Heard Sri S.K. Srivastava, learned counsel for the revisionists, Sri Shivam Tiwari, learned counsel for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record. 3. The factual matrix of the case in brief are that the informant Abbas lodged an FIR at P.S. 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, his daughter is student of class IXth. 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 IXth 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. As per G.D. Report No.17 dated 10.10.2021 time 10:30 hours, P.S. Gagalhedi Saharanpur, at the time of her recovery, effected on secret information she was found in the company of a boy on Rana Steel Trisection. However, her companion could not be caught and he fled away from the spot on noticing the police team. The statement of the victim was recorded on the same day under Section 161 Cr.P.C., wherein she stated that she studied in Class IXth at Siyaram Intermediate College. However, her companion could not be caught and he fled away from the spot on noticing the police team. The statement of the victim was recorded on the same day under Section 161 Cr.P.C., wherein she stated that she studied in Class IXth at Siyaram Intermediate College. Vasim and Taushif called her and took her near the shop, they got her sniffed some substance, whereupon she got unconscious and when she regain her consciousness, she found her in Dehradoon in a room where Farman, Danish, Wasim, Taushif and their sister Tasmini met her in the room. Farman, Wasim, Taushif and Danish committed rape on her and when she requested them to arrange a call from her family members, they threatened her with life. They took her at Sikandarpur and they stayed at the house Kuban, they took her from there to Sansarpur where she was confined for four days. She requested the police to inform her family members so that they could visit her in the police station. She was present before lady doctor Dr. Deepika for her medico legal examination, but she refused to get herself examined and stated that there was no pressure on her. The informant Abbas reiterated his FIR version in his first statement under Section 161 Cr.P.C., but after recording of the statement of victim under Section 161 Cr.P.C. he filed affidavit before SSP Meerut together with Abdul Rahman his brother in-law in the light of the statement of victim under Section 164 Cr.P.C. 4. The statement of the victim was recorded by Magistrate under Section 164 Cr.P.C. which has been copied in case diary Parcha No.7 dated 01.02.2021, wherein she did volte face and deviated from her version under Section 161 Cr.P.C. and stated that on 09.01.2021 at 12:00 hours she went to the place of her aunt (Bua) Gulshan at village Paragpur near Meerut on her own by traveling in a bus. No wrong act is done with her, she stayed there for three days, her father lodged a false case against Gram Pradhan Farman and Ramesh due to enmity. Informant Abbas and Abdul Rahman the uncle (Phufa) of the victim had filed an affidavit which is addressed to the S.S.P. Saharanpur on 21.01.2021 and same was forwarded to SHO concerned for necessary action through circle officer. Informant Abbas and Abdul Rahman the uncle (Phufa) of the victim had filed an affidavit which is addressed to the S.S.P. Saharanpur on 21.01.2021 and same was forwarded to SHO concerned for necessary action through circle officer. In this affidavit they supported the version of the victim recorded under Section 164 Cr.P.C., wherein she has given a clean chit to the named accused as well as other accused persons whose name surfaced during investigation, on the basis of statement of victim recorded under Section 161 Cr.P.C. 5. The police placed reliance on the statement of the victim under Section 164 Cr.P.C. 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. 6. 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 Taushif, Wasim, Farman, Danish and Tasleem wherein she acknowledged and placed reliance on her statement under Section 161 Cr.P.C. recorded by Investigating Officer and has deviated from her statement recorded by Magistrate under Section 164 Cr.P.C. She stated that her father reconciled the matter after fifteen days of the incident with the accused persons, in view of some inducement or pressure and he exerted pressure on her to depose infavour of the accused persons before the Magistrate and for that reason she had given her statement before the Magistrate under Section 164 Cr.P.C. 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 Cr.P.C. on the basis of which the police has filed final report in favour of accused persons is not a free statement. Infact, her statement under Section 161 Cr.P.C. is a real and true statement and on that basis police should have submitted chargesheet against the accused persons. Now the accused persons are threatening her and she apprehends some unforeseen incident may have occurred with her. Infact, her statement under Section 161 Cr.P.C. is a real and true statement and on that basis police should have submitted chargesheet against the accused persons. Now the accused persons are threatening her and she apprehends some unforeseen incident may have occurred with her. 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) Cr.P.C. 7. Learned 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 Cr.P.C. recorded by Magistrate. She has controverted her statement under section 161 Cr.P.C recorded by Investigating Officer in her statement before the Magistrate under Section 164 Cr.P.C. her father has also supported her stand under Section 164 Cr.P.C. by filing an affidavit which is part of case diary, no presumption can be raised against genuineness of the statement of the victim recorded by Magistrate under Section 164 Cr.P.C. 8. Feeling aggrieved by the impugned order dated 04.08.2023 the informant has filed present criminal revision. The informant and victim has jointly filed present criminal revision with prayer to set-aside the impugned order passed by learned Magistrate and the matter be remitted to learned Magistrate to decide the protest petition a fresh and summon the respondent No.2 for facing trial. 9. Learned counsel for the revisionists submitted that the learned trial court has wrongly placed reliance on statement of the victim recorded under Section 164 Cr.P.C. and ignored her statement under Section 161 Cr.P.C., in which she has given an entire gamut of the sequence of events which occurred with her from the date of her disappearance to the date of her recovery. He also submitted that the learned trial court has given a wrong finding that no prima facie case is made out to summon the accused persons to face trial after rejecting the final report. The learned Magistrate has eve not considered the averments in respect of protest petition filed by the victim. He also submitted that the learned trial court has given a wrong finding that no prima facie case is made out to summon the accused persons to face trial after rejecting the final report. The learned Magistrate has eve not considered the averments in respect of protest petition filed by the victim. Accused Vasim and Taushif mislead the victim and called her near their shop on 09.01.2021; they got her sniffed some intoxicating substance and thereafter they committed rape on her, and they threatened his father to pressurize her to give the statement before the Magistrate in their favour and also to refuse her medico legal examination. He next submitted that age of the victim was fourteen and half years at the time of incident and she was minor at the time of incident and therefore in view of commission of rape on her by accused persons a case under Section ¾ of POSCO Act is also made out together with sections 363, 366, 376 IPC. Learned Magistrate did not record statement of the victim in proper manner. 10. Per contra, learned counsel for the respondent No.2 submitted that there is no consistency in prosecution version, the father of the victim lodged an FIR naming accused Taushif only under Section 366 IPC, the victim in her statement under Section 161 Cr.P.C. implicated the accused persons including sister of the accused Taushif , however she has not implicated any of the accused persons in her statement under Section 164 Cr.P.C. and stated that she was rebuked by her parent and having been angry for that reason, she left her home on the date of incident and travelled to the place of her bua (aunt) in a bus and stayed there for three days and came to her home on her own. Even father and phupha (uncle of the victim) has supported her stand taken under Section 164 Cr.P.C. by filing their affidavit during investigation which is included in the case diary. Even father and phupha (uncle of the victim) has supported her stand taken under Section 164 Cr.P.C. by filing their affidavit during investigation which is included in the case diary. However, the victim did a volte face after filing of closure report by the police in the case and filed a protest petition with prayer to take cognizance against proposed accused and summon them as accused to face trial for alleged offence and when the court dismissed the protest petition and accepted closure report, her father and victim had filed present criminal revision placing reliance on statement under Section 161 Cr.P.C. made by the victim before Investigation Officer . There is no illegality, irregularity or perversity in the impugned order passed by the learned trial court. The victim has changed her stand at every stage and therefore, no reliance can be placed on her averment. She even denied to undergo medicolegal examination when offered by the doctor. 11. This High Court in Pakhandu v. State of U.P. decided on 13.09.2001 was called upon for consideration of earlier judgment in Moahabbat Ali v. State of U.P reported in 1985 UP Cri R 264. The brief facts of the case were that on an application moved by Smt. Vimala Devi, the Magistrate in exercise of powers under Section 156(3), Cr. P.C directed the police to register the case and investigate the same. Consequently an F.I.R under Sections 467/468/419/420/364 and 392, I.P.C was registered and investigated. On completion of investigation, police for warded a final report to the Court of the concerned Magistrate. Feeling aggrieved, the complainant Smt. Vimala Devi filed objections in the form of ‘Protest Petition’ against the acceptance of final report. Along with the said petition, she also filed her own affidavit and affidavits of witnesses Ram Charan and Mata Prasad. It further appears that the learned Magistrate, on the basis of material on record came to the conclusion that there was sufficient ground to proceed against the applicants and issued process against them under Section 204 of the Code of Criminal Procedure. Thereafter, an application on behalf of the applicants was moved before the Magistrate for recalling the summoning order dated 7-7-1997. Thereafter, an application on behalf of the applicants was moved before the Magistrate for recalling the summoning order dated 7-7-1997. This application was however rejected by the learned Magistrate by the order dated 21-10-1999 holding that the applicants had no right of hearing before passing of the summoning order and as cognizance has been taken under Section 190(1)(b). Cr. P.C the order of summoning was amenable to revision. The applicants then preferred revision before the Session Judge against the aforesaid order dated 29-10-1999. The revision has also been dismissed by the learned Session Judge by the impugned order dated 15-5-2000. The applicants have now approached this Court for invoking inherent powers of the Court under Section 482, Cr. P.C seeking quashing of the summoning order dated 7-7-1997. 12. When this application was taken up for admission on 25-5-2001 by this Court, it was urged on behalf of the applicants that they have been summoned under Section 364, I.P.C also which offence is triable exclusively by the Court of Session, yet before issuing process the learned Magistrate did not record statements of all the witnesses as required by the proviso to Section 202(2), Cr. P.C. This Court observed as under:- 6. Chapter XTV of the Code of Criminal Procedure deals with the conditions requisite for initiation of proceedings. For the purpose of this case, we are concerned with Section 190(1) alone which is reproduced below: “190. Cognizance of offences by Magistrate:— (1) Subject to the provisions of this Chapter, and Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence: (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.” 7. There are four more methods of taking cognizance of offences by the Court competent to try the same. The Court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the Court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate. The Court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the Court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate. [vide A.R Antulay v. R.S Nayak, (1984) 2 SCC 500 : ( AIR 1984 SC 718 )]. 8. When a Magistrate receives a complaint or an application under Section 156(3), Cr. P.C which otherwise tantamounts to complaint under Clause (d) of Section 2 of the Code, there are two courses open to him. He may take cognizance under Section 190(1)(a) by applying his mind to the facts of the case. In that event he has to proceed in the manner provided in Sections 200 and 202, Cr. P.C By virtue of Section 200 he is required to examine the complainant and the witnesses present, if any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process under Section 204. However, if the Magistrate is not satisfied, he may either dismiss the complaint under Section 203, Cr. P.C or post pone the issue of process and take recourse to Section 202 which provides that he may inquire into the case himself or may direct an investigation to be made by a police of ficer or such other person as he thinks fit for the purpose of deciding whether or not there are sufficient grounds to proceed. But if the offence is triable exclusively by a Court of Session, the Magistrate cannot make a direction for investigation. It is only where the Magistrate decides to hold the inquiry himself that the proviso to sub-section (2) of Section 202, which we extract below, would come into operation: “Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.” 9. The other course open to the Magistrate is that instead of taking cognizance, he may send the complaint/application under Section 156(3), Cr. P.C for police investigation. If the course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157 onwards. The other course open to the Magistrate is that instead of taking cognizance, he may send the complaint/application under Section 156(3), Cr. P.C for police investigation. If the course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157 onwards. If upon investigation the police came to the conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify the forwarding of accused for trial and submitted final report for dropping the proceedings, following courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require: (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; (II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C and thereafter decide whether complaint should be dismissed or process should be issued. 10. The Apex Court in Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 117 held that on receiving final report it was not within the powers of the Magistrate to direct the police to submit a charge sheet but it is open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion, expressed in the police report. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion, expressed in the police report. It was observed there in that the Magistrate in that event could take cognizance under Section 190(1)(c) of the Code. The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in a later decision of H.S Bains v. State, (1980) 4 SCC 631 : AIR 1980 SC 1883 . 11. In H.S Bains, ( (1980) 4 SCC 631 : AIR 1980 SC 1883 ) (supra) it was held by the Supreme Court that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under Section 173(2), Cr. P.C The Magistrate may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. In that case it was observed : “If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324, Indian Penal Code only and he may take cognizance of an offence under Section 324 in stead of Section 307. Similarly, if a police report mentions that half a dozen persons examined by them claim to be eye-witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does go, it would be on the basis of the statement of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the con clusions arrived at by the police.” 12. In another decision in India Carat Pvt. Ltd. v. State of Karnataka, (1989) 2 SCC 132 : AIR 1989 SC 885 (890), it was held as under: The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusions arrived at by the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropplltan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.” 13. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropplltan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.” 13. In the case of Tularam v. Kishore Singh, (1977) 4 SCC 459 : AIR 1977 SC 2401 , it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case under Section 190(1)(b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with. 14. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:— (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or. (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C and thereafter decide whether complaint should be dismissed or process should be issued. 14. (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C and thereafter decide whether complaint should be dismissed or process should be issued. 14. In light of aforesaid dictum of this Hon’ble Court in Pakhandu (supra) undoubtedly the Magistrate is at liberty to adopted all the four courses enumerated in the said judgment on production of a closure report by police after investigation into a FIR to the effect that complicity of the accused is not found in the alleged offence or no alleged offence has not been found to be committed. 15. In the present case, learned Magistrate after placing reliance on closure report filed by the police after conclusion of an investigation, adopted I st course as stated in Pakhandu (supra) and accepted closure report submitted by police infavour of the accused persons whose name has been surfaced during investigation, placing reliance on statement of prosecutrix under Section 164 Cr.P.C. and affidavits of the father and uncle (phupha) of the prosecutrix during the course of investigation which was made part of investigation. 16. In the instant 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 Cr.P.C. recorded by Investigating Officer at the early stage of investigation when she was recovered by police, but she exculpated all the accused persons in her statement under Section 164 Cr.P.C. 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 bua (father’s sister) where she stayed for three days and he came back to her home subsequently. This statement was supported by father of the prosecutrix and her Phupha Abdul Rahman by filing an affidavit during investigation. Abdul Rahman stated in his affidavit that victim visited his place alone and remained there for three days during the period of her disappearance. This statement was supported by father of the prosecutrix and her Phupha Abdul Rahman by filing an affidavit during investigation. Abdul Rahman stated in his affidavit that 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 shes placed reliance on her statement under Section 161 Cr.P.C. recorded by police and stated that her statement under Section 164 Cr.P.C. was tutoring an external pressure. 17. Section 164 of the Code also gives power to the investigating agency to forward any person for recording of his confession and the statements before a Magistrate. In the case of Raju Vs. State of U.P. and others : 2012 (78) ACC 111, a Division Bench of this Court in paragraph 9 has observed as follows: "9. We are of the opinion that the statement of an accused or victim or a witness which is to be recorded under Section 164 Cr.P.C., might be a statement recorded during the course of investigation of a case but that is quite different from the statement of witnesses recorded under Section 161 Cr.P.C. The reason is that there is a full fledged provision under Section 164 Cr.P.C. authorizing the recording of such a statement by a judicial Magistrate. The practise and the procedure which is followed in recording such a statement is that the police has to file an application before the head of Magistracy, who is presently the Chief Judicial Magistrate, requesting for the statement of such a person to be recorded. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an application and further passes an order upon the same and thereafter direct by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an application and further passes an order upon the same and thereafter direct by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. In case of other judicial Magistrate being deputed for recording the statement under Section 164 Cr.P.C., the witness along with the judicial record is transmitted to the deputed judicial Magistrate, who records the receipt of the record for the purpose and proceeds to record the statement and as soon as it is recorded, he again records the recording of such a statement in the order-sheet of the same record and transmits the record along with the recorded statement under Section 164 Cr.P.C. to the Chief Judicial Magistrate. Thus, the whole exercise appears judicial in nature. Not only that, it further indicates that the orders drawn in the above behalf as also the statement recorded are the records of the judicial acts performed by him in discharge of official and judicial functions by a Judge. The recording of the statements is enjoined by the law of the country and the record in the form the recorded statement under Section 164 Cr.P.C. is the record of the act of a public servant discharging his official and judicial functions. In addition to that the statement recorded under Section 164 Cr.P.C. is never taken out of the judicial record nor it is handed over to the Investigating Officer or any other police officer. The copy of the statement is allowed to be copied in the relevant part of the case dairy. Thus, the recorded statement under Section 164 Cr.P.C. assumes the part of the judicial record of that particular case and, as such, it is the part of the case. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164 Cr.P.C. could not, strictu sensu, be said to be a mere statement during investigation which could be treated as part of the case dairy. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164 Cr.P.C. could not, strictu sensu, be said to be a mere statement during investigation which could be treated as part of the case dairy. It could never be put at par with a statement under Section 161 Cr.P.C. and as such it could never be said to be a part of case dairy." 18. The statement made by the prosecutrix/victim under Section 164 Cr.P.C. before the Magistrate stands on a high pedestal and a 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. 19. With foregoing discussion this court does not find any illegality, irregularity or perversity in the impugned order passed by learned Magistrate, whereby the final report filed by the police after investigation in the case infavour of accused persons placing reliance on statement of the prosecutrix recorded under Section 164 Cr.P.C. 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. 20. The learned 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 statement of prosecutrix recorded by Magistrate before the court suffers from falsehood or external pressure. 21. 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. 22. However, it is pertinent to observe that even after acceptance of final report and dismissal of protest petition filed by the defacto complainant or prosecutrix are at liberty to file criminal complaint under Chapter 15 of Code of Criminal Procedure before the competent court, if they think fit and if such complaint is made before the court below, the same will be dealtwith in accordance with law, as no embargo is created under law on filing of criminal complaint only due to fact that revision preferred against impugned order passed by learned Magistrate has been dismissed by this Court. 23. 23. The revision is dismissed with above observations.