Years, Resident Of Pilodi, Manpur, District Dausa (Raj.) v. State Of Rajasthan, Through Public Prosecutor

Judgment

2. State Of Rajasthan, Through Public Prosecutor Victim, R/o Connected With S.B. Criminal Revision Petition No. 726/2023 ----Respondents Victim, R/o ----Petitioner

2. Versus State Of Rajasthan, Through P.p Khem Chand S/o Shri Chauthiram Prajapat, Aged About 22 Years, R/o Pilodi Manpur, District Dausa Rajasthan

3. Anoop Meena S/o Shri Kedar Meena, Aged About 25 Years, R/o Pilodi Manpur, Dsitrict Dausa Rajasthan

Abhishek Meena S/o Shri Meghram Meena, R/o Darjapur Patti, P.s. Mehandipur Balaji District Dausa S.B. Criminal Revision Petition No. 1093/2023 Abhishek Meena Son Of Shri Meghram Meena, Resident Of Darjapur Patti, Police Station Mehandipur Balaji District Dausa (Raj) ----Respondents Versus

2. State Of Rajasthan, Through P.p Victim, R/o ----Petitioner ----Respondents For Petitioner(s) : Mr. Manish Gupta, Advocate assisted by Ms. Sweta Soni, Advocate [2025:RJ-JP:16335] (2 of 11) [CRLR-682/2023] For Respondent(s) : Mr. Amit Punia, PP Mr. Banvari Lal Saini Mr. T.L. Pandey Mr. Dharmendra Joshi Mr. Kanhaiya Lal Choudhary Mr. Ganga Ram Sharma HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 03/04/2025

1. These three revision petitions were preferred by different parties aggrieved and dis-satisfied from order dated 24.05.2023 in sessions case No. 41/2023 passed by learned Special Judge, POCSO Act Cases, Dausa.

2. S.B. Revision Petition Nos. 682/2023 and 1093/2023 were preferred by petitioners-accused Anoop Meena, Khem Chand and Abhishek Meena whereas revision petition No. 726/2023 is preferred by victim (minor) through her mother.

3. The facts giving rise to these revision petitions are that victim (DoB-12.09.2006) has filed a written report on 14.02.2023 at Police Station, Manpur, District Dausa against Sanjay Meena, Khem Chand Prajapat, Anoop Meena, Asif and 8-10 other persons for sexual harassment, rape, assault etc. On basis of report, FIR No. 41/2023 under Sections 143, 323, 376-D, 376(2)(n), 506 IPC, Section 5/6 POCSO Act and Section 3(1)(r), 3(1)(s), 3(2)(va) of S.C./S.T. (POA), Act. After investigation, police has filed charge- sheet under Section 366-A, 511, 323, 341, 376(2)(n), 504 IPC and 5/6 POCSO Act against Sanjay Kumar Meena under Sections 366-A, 511, 323, 341, 504, 506, 120-B IPC, 16/17 POCSO Act against Saurabh Kumar Meena and under Sections 366-A, 511, 323, 341, 504, 506, 120-B IPC, 16/17POCSO Act, Section 3(1)(r), 3(1)(s), 3(2)(va) of S.C./S.T. (POA), Act against Asif. The police [2025:RJ-JP:16335] (3 of 11) [CRLR-682/2023] has further opined that there is no evidence about involvement of Khem Chand, Anoop and others and proposed no action against them.

4. The complainant-victim has filed an application under Section 190/193 of Cr.P.C. for taking cognizance against Anoop, Khem Chand and Abhishek. Learned Trial Court after considering the material on record has allowed the application and took cognizance against Anoop, Khem Chand and Abhishek under Sections 16/17 POCSO and 120-B IPC and further directed to issue warrant of arrest against these persons.

5. Learned counsel for petitioners Anoop, Khem Chand and Abhishek while placing reliance upon ground of revision petition submits that victim-complainant has filed a report after a substantial delay and without explaining the reasons of delay, police has investigated the matter. He further submitted that after investigation, police has found involvement of Sanjay, Sourabh and Asif and filed a charge-sheet against them but police has specifically found that there is no evidence against Anoop, Khem Chand and Abhishek. He further submitted that even Abhishek was neither named in the FIR nor in statement by victim. He further referred the statement under Section 164 Cr.P.C. and submitted that from the statement of victim nowhere the involvement of present petitioners were established. He also submitted that the order passed by the Trial Court indicate that the petitioners Anoop, Khem Chand and Abhishek were charged for providing active assistance, aid and abatement of offence but there is no evidence on record to substantiate the charge under Section 16/17 POCSO Act and under Section 120-B of IPC for [2025:RJ-JP:16335] (4 of 11) [CRLR-682/2023] criminal conspiracy. Learned counsel for petitioners further referred the statement of victim and other evidence on record collected by police and submitted that filing of such an application is a serious misuse of provision of law and same should be curtailed immediately. He also referred hospital register and submitted that date of birth of victim is 22.07.2004 and she is major on the date of incident and case under POCSO Act is not made out. He also submitted that the Trial Court has allowed the application without considering the fact that after a detailed investigation police has not found any material to recommend charge-sheet against Anoop Meena and Khem Chand. He further submitted there is no evidence against Abhishek and without evidence the Trial Court has proceeded to take cognizance on an application under Section 193 of Cr.P.C. At last, he submitted that after filing of charge-sheet once the cognizance was taken, then again an order of cognizance cannot be passed again under Section 193 Cr.P.C.

6. Learned counsel has further placed reliance upon judgment in case of Vikas Vs. State of Rajasthan (2014) 3 SCC 321 and submitted that when a cognizance is taken under Section 319 Cr.P.C. after closure report of police, then issuance of non-bailable warrant at very first instance is not proper. He further places reliance upon judgment in case of Inder Mohan Goswami Vs. State of Uttaranchal (2007) 12 SCC 1. He further referred a Division Bench judgment of this Court in case of Manohar Lal Saini and Ors. Vs. State of Rajasthan 2016 (1) Cr.L.R. (Raj.) 184 and submitted that when a cognizance is taken under Section 319 of Cr.P.C. then issuance of warrant of arrest is not proper. He [2025:RJ-JP:16335] (5 of 11) [CRLR-682/2023] further submitted that petitioner-accused Anoop has been selected for the post of Junior Accountant and Tehsil Revenue Accountant.

7. Aforesaid contentions were opposed by learned counsel for complainant. Learned counsel for complainant while opposing the contentions in two criminal revisions and arguing on behalf of complainant for taking cognizance under other provisions of law has submitted that as per FIR, the police was required to investigate the matter fair and impartial manner but has not investigated the matter in proper manner. He further referred the judgment in case of Krishnamurthy Gunodu and Ors. Vs. State of Karnataka (Criminal Appeal No. 288/2022) and submitted that the complainant has able to establish common intention of accused persons from evidence of victim but the Trial Court has not taken cognizance under Section 376 IPC or Section 5/6 of POCSO Act. He also submitted that the statement recorded under Section 164 Cr.P.C. clearly shows that accused Anoop & Khem Chand were involved in gang rape with victim and the evidence on record is sufficient to take cognizance against them under Section 5/6 POCSO Act. He further relied upon judgment in case of Onkash Kumar Singh Vs. State of (U.P. AHC-LKO- 51247) and submitted that the statement of prosecutrix under Section 164 Cr.P.C. is having at par evidenciary value as the injured witness in a criminal case. Therefore, on basis of statement under Section 164 Cr.P.C. the Trial Court was bound to take cognizance against by petitioners-accused.

8. Heard learned counsels for the parties and learned Public Prosecutor. Perused the material placed on record along with judgments as referred by learned counsels for the parties. [2025:RJ-JP:16335] (6 of 11) [CRLR-682/2023]

9. A perusal of circumstances mentioned in charge-sheet by police indicate that police has found involvement of Sanjay, Saurabh and Asif but involvement of Khem Chand, Anoop and others were not found. On basis of involvement, charge-sheet was filed against 3 persons but not against Khem Chand, Anoop and others. The victim was examined under Section 164 Cr.P.C. on

16.02.2023. She has named Sanjay, Khem Chand, Asif, Anoop but she did not name Abhishek in her statement. The main allegation was made against Sanjay. The statement of victim was also recorded under Section 161 Cr.P.C. We havee gone through the detailed type-written report filed by complainant. Police has recorded statement of several witnesses under Section 161 Cr.P.C. and we have gone through the statement of all witnesses. Victim was medically examined on 15.02.2023. Learned counsel for complainant has filed a report dated 06.05.2023 submitted by Dy. S.P. Circle, Manpur, Dausa. This factual report also indicate that police has not found involvement of any person other than recommended for charge-sheet.

10. Firstly, the learned counsel for appellants-accused have raised an issue and stage and competency of learned Sessions Judge to take cognizance. This issue was considered by a Constitution Bench of Hon’ble Supreme Court in case of Dharam Pal Vs. State of Haryana and Anr. (2014)3 SCC 306 and Hardeep Singh Vs. State of Puinjab and Ors. (2014) 3 SCC 92 and were further considered in case of Nahar Singh Vs. The State of Uttar Pradesh (Criminal Appeal No. 443/2022), wherein held that a sessions Court is competent to take cognizance under Section 193 of Cr.P.C. Similarly, in case of [2025:RJ-JP:16335] (7 of 11) [CRLR-682/2023] Nupur Talwar Vs. CBI and Anr. (2012) Cr.L.J. 954 (SC) Hon’ble Supreme Court has held that Magistrate is competent to take cognizance by rejecting negative report of police. If the order is well-reasoned and showing due application of mind then the Court should not interfere in the order passed by the Trial Court. In case of Krishnamurthy Gunodu and Ors. Vs. State of Karnataka (supra) Hon’ble Supreme Court on basis of omission by a co-perpetrator has held that if he has done nothing but stood outside the door while the offence is committed then may be liable for the offence with aid of common intention.

11. In case of Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & Anr. (Criminal Appeal No. 632/2022), a three Judge Bench of Hon’ble Supreme Court while considering the definition of victim under the Cr.P.C. held that victim cannot be asked to await the commencement of the trial for asserting his/her right to participate in the proceeding. He/She has a legally vested right to be heard at every step, post the occurrence of an offence. Such a victim has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.

12. In case of Rajneesh Vs. State of Rajasthan & Anr. 2016 (3) Cr.L.R. Raj. 1349, a Co-ordinate Bench of this Court has found that there is no illegality or perversity in summoning the accused by issuing a warrant of arrest. In case of Sita & Anr. Vs. State of Rajasthan & Anr. 2018 (2) R.Cr.D. 325, a Co- ordinate Bench while placing reliance upon Kishun Singh & Ors. Vs. State of Bihar (1993) 2 SCC 16 has held that the Special Judge is justified in summoning additional accused on basis of [2025:RJ-JP:16335] (8 of 11) [CRLR-682/2023] material on record to face trial. Similar, view was also expressed by a Co-ordinate Bench of Jammu & Kashmir High Court in case of Ghulam Mohd. Mir Vs. Tej Krishen Ganjoo & Ors. Cr.M.C. No. 9900001/2017 (O & M).

13. A perusal of legal position clearly indicate that a Sessions Court is empowered to take cognizance under Section 193 Cr.P.C. when a Sessions case is committed to the Sessions Court. When an application under Section 193 Cr.P.C. filed by victim then Session Court is justified in exercising the power and same is supported with legal position as mentioned hereinabove. Thus, the trial Court is competent to pass an order of cognizance.

14. Now, comes the question whether a sufficient material is available on record. The police has filed a negative report and opined that no material is available against Anoop Meena, Khem Chand and others though there is no specific opinion about Abhishek Meena which means from the investigation no material was collected about involvement of Anoop, Khem Chand and Abhishek.

15. As per legal position settled till date a Magistrate or Special Court is empowered to take cognizance even a negative report is filed by police. Herein, the counsel of +complainant-victim has placed reliance upon statement of victim under Section 164 Cr.P.C. wherein she named Anoop and Khem Chand but the counsel has specifically referred use of a Swift Car, belongs to accused- Abhishek Meena. The involvement of Abhishek is only based on ownership, aid and assistance. At the stage of cognizance, no Court can go beyond a prima facie case. This Court in a revision petition cannot conduct a roving inquiry but all the three [2025:RJ-JP:16335] (9 of 11) [CRLR-682/2023] petitioners Anoop, Khem Chand and Abhishek were figured as suspect in police investigation and a niddle of suspicion was raised over them about their involvement in the matter by complainant. Learned counsel for petitioner has referred the date of birth of victim and submitted that she is major so POCSO Act is not attracted. The material submitted by petitioner Anoop and Khem Chand cannot be determined at this stage. Otherwise also date of birth of victim can be considered in accordance with Section 94 of Juvenile Justice (Care and protection of Children) Act, 2015.

16. Learned counsel for petitioners-accused has seriously raised an issue of non-availability of sufficient material against Anoop Meena, Khem Chand & Abhishek Meena. On the contrary, learned counsel for complainant placed reliance upon statement of victim recorded under Section 164 of Cr.P.C. and further statement of other witnesses recorded by police. A perusal of discussions made hereinabove, clearly indicate that Anoop Meena, Khem Chand were named by complainant-victim during investigation and they remained suspected till a closure report is filed by police. The allegation against Abhishek Meena is primarily based on aid and assistance and we have already considered the material available on record. At the stage of cognizance under Sections 190/193 Cr.P.C. before commencement of trial of any case, the Court has to consider prima facie case and if on prima facie case, a case is made out to initiate trial then proper course is to take cognizance of an offence. Herein, this case the Court has already taken cognizance about offence and now, the question is only involvement. At this stage, this Court cannot enter into a roving inquiry to find out the guilt of petitioners-accused on merits. [2025:RJ-JP:16335] (10 of 11) [CRLR-682/2023] Considering the entire material on record, I am of the considered view that the Trial Court has not committed any error by taking cognizance against three accused Anoop Meena, Khem Chand and Abhishek Meena, therefore, there is no perversity or illegality in the order passed by the Trial Court.

17. The complainant has also challenged the order of cognizance on the ground that the Trial Court has not taken cognizance under the main provision of rape against the petitioners-accused Anoop and Khem Chand. Herein, this case after an order of cognizance, the matter is before us but after pre-trial compliances the option before learned Trial Court is to proceed in accordance with Chapter XIX of BNSS. Section 249 provides for opening of case for prosecution and the prosecution is free to advance arguments about the charge made out against each of person facing trial. The accused is entitled to seek discharge under Section 250 and if the Court was of the opinion that there is no case under Section 250 of BNSS then it may proceed under Section 251 to frame charge. The complainant or prosecution can advance arguments at the stage of opening case for prosecution and on Section 250-251 of BNSS. If the Trial Court has not taken cognizance under any specific provision then it does not mean that order to cognizance is final order to commence trial rather its stage of charge, wherein both the parties may submit their viewpoint before trial Court, thus, the revision petition preferred by complainant also sans merits.

18. The petitioners-accused Anoop Meena, Khem Chand and Abhishek Meena were straightaway summoned by issuing a warrant of arrest. The issue of summoning through warrant of [2025:RJ-JP:16335] (11 of 11) [CRLR-682/2023] arrest at first instance in case where a closure report or where cognizance is at belated stage, was considered by Hon’ble Supreme Court in case of Inder Mohan Goswami Vs. State of Uttaranchal (supra). Hon’ble Supreme Court while deprecating the issuance of warrant of arrest at first instance has also considered liberty of an individual under Article 21 of the Constitution of India. The judgment was considered by Hon’ble Supreme Court in case of Vikas Vs. State of Rajasthan (supra) and followed by a Division Bench of this Court in case of Manohar Lal Saini and Ors. Vs. State of Rajasthan 2016 (supra), therefore, the warrant of arrest against Anoop Meena, Abhishek Meena and Khem Chand are required to be converted into a bailable warrant of ₹25,000/-.

19. In view of discussions made hereinabove, the S.B. Criminal Revision Petition Nos. 682/2023 and 1093/2023 preferred by petitioners-accused and revision petition No. 726/2013 preferred by victim are hereby dismissed but order to summon petitioners- accused Anoop Meena, Abhishek Meena and Khem Chand through warrant of arrest is set aside and mode of summon is changed to bailable warrant of ₹25,000/- each.

20. The Trial Court is directed to issue bailable warrant accordingly.

21. All revision petitions along with pending application(s), if any also stands disposed of. MONU /183-185 (ASHOK KUMAR JAIN),J