State of U.P v. Kuldeep Gautam and others, Arising out of Case Crime No

1. Heard Sri Prabhat Kumar Mishra,learned counsel for petitioner as well as learned A.G.A. for the State.

2. Present criminal revision under Section 397/401 of Cr.P.C. now U/S 438/442 of BNSS, 2023 against the impugned order dated 10.02.2025 passed by the Court of Addl. Sessions Judge, F.T.C. Pratapgarh in Criminal Misc. Case bearing Sessions Trial No. 302/2024, (CNR No. UPPG010017292024) State of U.P. Vs. Kuldeep Gautam and others, Arising out of Case Crime No. 530 of 2023 U/S 363, 366 I.P.C., 1860 Police Station - Patti, District - Pratapgarh.

3. The revisionist is a complainant who had lodged a first information report on 17.12.2023 U/S 363A and 368 I.P.C. at Police Station Patti District Pratapgarh stating that his minor daughter aged about 15 years has been enticed away by the accused persons on the night of 12/13.12.2023 and even the mobile given to the minor daughter has been destroyed. Apprehension was expressed that the said accused person would have killed his minor daughter.

4. It was further stated that at the time she was leaving the house of the complainant, she has taken away Rs. 5,000/-. Subsequently the prosecutrix was traced and the statement U/S 161 Cr.P.C. was recorded where she has stated that she is 18 years of age and studying in High School. She has further stated that she knows the accused Kuldeep Gautam since last 6 years and also wants to marry the said accused but the said marriage was opposed by the complainant and the family members because Kuldeep Gautam belongs to another caste. She has stated that she has left the home of her father two months earlier and has got married in the Maa Belha Devi Temple in Pratapgarh on her own consent and they are living as husband and wife in Lucknow. It was further stated that they have physical relations. She disclosed these facts to her father on telephone who requested her to come home so that he could get the marriage done and when she returned home her father refused to get her marriage to Kuldeep Gautam and it is in the aforesaid circumstances on 13.12.2023 she went to Delhi along with Kuldeep Gautam and started living with her husband. She has further stated that after she has left the home of her father she has an information that her father has got a criminal case registered.

5. Subsequently her statement U/S 164 Cr.P.C. was also recorded where she has stated that on 13.12.2023 at around 4.00 O'clock in the morning she has left the home without telling her parents on her own accord for Delhi. She has further stated that for the last 78 days she has living with Kuldeep Gautam who has not done any wrong to her and that she knows Kuldeep Gautam for the last 6 years and also that they have got married.

6. At this stage, an application was preferred on behalf of the complainant stating that police has filed a chargesheet U/S 363 and 366 I.P.C. and have not filed the charge-sheet with regard to any provisions of POCSO Act despite the fact that an offence under the said act is clearly made out from the material on record and consequently prayed that an appropriate charge be made under the POCSO Act. The application of the complainant was duly considered by the trial court and rejected by means of impugned order dated 10.02.2025. While rejecting the said application, the trial court has duly looked into the statements recorded under Section 161 and 164 of Cr.P.C. He has stated that in the statement under Section 164 Cr.P.C. there is no mention of any sexual assault upon her by the accused. He has further dealt with the aspect that even though in the statement U/S 161 Cr.P.C. there are allegations of sexual assault but the statement U/S 164 Cr.P.C. is at a higher pedestal having been recorded before the Magistrate and in absence of any categorical statement by the prosecutrix that she was sexually assaulted, there is no ground or any material to frame charges under the provisions of POCSO Act and consequently has rejected the application.

7. Learned counsel for revisionist while assailing the impugned order has submitted that there was substantial material before the Magistrate concerned and consequently it was incumbent upon him to have framed charges under the POCSO Act. He further submit that at the stage of framing of the charges, the Magistrate should not have weighed the evidences in favour of either of the parties and that stage would come subsequently but in case a cognizable offence is made out from the material on record, then it was mandatory to frame a charge and by not framing the charge under the POCSO Act he has committed an error which can be rectified by this Court in exercise of powers under Section 397 of Cr.P.C.

8. Learned A.G.A. on the other hand has opposed the revision. He has submitted that at the stage of framing of charges, it is the discretion of the court and undoubtedly from the material available before him all the ingredients constituting the offence ought to be made out prima facie to constitute the said charge. For the sake of convenience provision of Section 240 of Cr.P.C. is quoted as under:- "240. Framing of charge. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

9. From the aforesaid provisions, it is noticed that at the stage of framing of charges, the Magistrate has to duly taken into account and consider the material before him as submitted by the investigating agency and in case he is of the opinion there are grounds for presuming that the accused has committed a particular offence then he shall frame said charge in writing against the accused.

10. The dispute in the present case is as to whether it was incumbent upon the Magistrate at a particular stage of framing of the charge under the POCSO Act. There is no dispute with regard to the fact that initially the first information report was lodged under Sections 363A, 368 I.P.C. stating that his minor daughter is missing from home. Subsequently the prosecutrix was traced out and a statement was recorded under Section 161 Cr.P.C. where she said that she has gone on her own accord and started living with the accused. She has further stated that she has got marriage and they have also developed physical relations.

11. The main plank of the arguments of the revisionist is relying on the statement U/S 161 Cr.P.C. From the said Section prima facie an offence of the provisions of POCSO Act is made out but subsequently the prosecutrix was examined U/ S 164 Cr.P.C. before the Magistrate where she has clearly stated that she has got married to the accused who has not committed any wrong upon her meaning thereby she had denied any sexual assault with or without consent by the accused. In this regard, the trial court had after weighing the two evidences had found that there is no credibility and credence to statement recorded U/S 164 Cr.P.c. rather than statement U/S 161 Cr.P.C. inasmuch as the Statement U/S 164 Cr.P.C. has been recorded in the presence of the Magistrate which has more evidenciary value rather than the statement recorded under Section 161 Cr.P.C. during investigation by the Investigating Officer.

12. A Division Bench of this Court in the case of Raju Vs. State of U.p. & Others, 2012 (18) ACC 111, has discussed that statement under Section 164 of Cr.P.C. holds more sanctity n the yes of law. The relevant para is as under:- "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. 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. It could never be put at par with a statement under Section 161 and as such it could never be said to be a part of case dairy."

13. It is in the aforesaid circumstances, at this stage he has not framed charges. He was of the considered view that there is no requirement of framing charges under the POCSO Act. In the revisional jurisdiction, the court would interfere in exercise discretion by the Magistrate if the same is found to be illegal, arbitrary and contrary to record or in case the Magistrate has framed charges without there being any material or despite disclosure of material he has declined to frame charges. In the present case, this Court finds that he has taken into account the statement of the prosecutrix under the provisions of Section 164 of Cr.P.C. and he has relied upon the statement of the prosecutrix exonerating the accused on all the offences under the POCSO Act. This Court finds that the trial court was within its competence on the basis of material on record to come to a conclusion which he has done in the present case.

14. At the stage of framing of charges, this Court does not find any error that he has declined to frame charges under the POCSO Act inasmuch as there is no denial of the fact that from a bare reading of Section 164 Cr.P.C. no offence of the POCSO Act is made out. With regard to the framing of charge under any other provision than what has been framed is not conclusive at the stage of framing of charges because the Code of Criminal Procedure further provides that if any stage of proceedings there is a disclosure of the cognizable offence then the charge can be framed at that stage if there is substantial material available. Accordingly, this Court does not find any error in the discretion exercised by the Magistrate at a particular stage of declining to frame charge under the POCSO Act. Undoubtedly, if during the trial any other material is cogent and reliable material comes before the Magistrate, disclosing any other cognizable offence he would be at liberty to proceed in accordance with law and frame appropriate charge. Accordingly, I do not find any infirmity in the impugned order and therefore the present criminal revision is bereft of merits and is accordingly dismissed. Order Date :- 10.4.2025/Ravi/ (Alok Mathur, J.) RAVI SHANKAR SRIVASTAV RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard Sri Prabhat Kumar Mishra,learned counsel for petitioner as well as learned A.G.A. for the State.

2. Present criminal revision under Section 397/401 of Cr.P.C. now U/S 438/442 of BNSS, 2023 against the impugned order dated 10.02.2025 passed by the Court of Addl. Sessions Judge, F.T.C. Pratapgarh in Criminal Misc. Case bearing Sessions Trial No. 302/2024, (CNR No. UPPG010017292024) State of U.P. Vs. Kuldeep Gautam and others, Arising out of Case Crime No. 530 of 2023 U/S 363, 366 I.P.C., 1860 Police Station - Patti, District - Pratapgarh.

3. The revisionist is a complainant who had lodged a first information report on 17.12.2023 U/S 363A and 368 I.P.C. at Police Station Patti District Pratapgarh stating that his minor daughter aged about 15 years has been enticed away by the accused persons on the night of 12/13.12.2023 and even the mobile given to the minor daughter has been destroyed. Apprehension was expressed that the said accused person would have killed his minor daughter.

4. It was further stated that at the time she was leaving the house of the complainant, she has taken away Rs. 5,000/-. Subsequently the prosecutrix was traced and the statement U/S 161 Cr.P.C. was recorded where she has stated that she is 18 years of age and studying in High School. She has further stated that she knows the accused Kuldeep Gautam since last 6 years and also wants to marry the said accused but the said marriage was opposed by the complainant and the family members because Kuldeep Gautam belongs to another caste. She has stated that she has left the home of her father two months earlier and has got married in the Maa Belha Devi Temple in Pratapgarh on her own consent and they are living as husband and wife in Lucknow. It was further stated that they have physical relations. She disclosed these facts to her father on telephone who requested her to come home so that he could get the marriage done and when she returned home her father refused to get her marriage to Kuldeep Gautam and it is in the aforesaid circumstances on 13.12.2023 she went to Delhi along with Kuldeep Gautam and started living with her husband. She has further stated that after she has left the home of her father she has an information that her father has got a criminal case registered.

5. Subsequently her statement U/S 164 Cr.P.C. was also recorded where she has stated that on 13.12.2023 at around 4.00 O'clock in the morning she has left the home without telling her parents on her own accord for Delhi. She has further stated that for the last 78 days she has living with Kuldeep Gautam who has not done any wrong to her and that she knows Kuldeep Gautam for the last 6 years and also that they have got married.

6. At this stage, an application was preferred on behalf of the complainant stating that police has filed a chargesheet U/S 363 and 366 I.P.C. and have not filed the charge-sheet with regard to any provisions of POCSO Act despite the fact that an offence under the said act is clearly made out from the material on record and consequently prayed that an appropriate charge be made under the POCSO Act. The application of the complainant was duly considered by the trial court and rejected by means of impugned order dated 10.02.2025. While rejecting the said application, the trial court has duly looked into the statements recorded under Section 161 and 164 of Cr.P.C. He has stated that in the statement under Section 164 Cr.P.C. there is no mention of any sexual assault upon her by the accused. He has further dealt with the aspect that even though in the statement U/S 161 Cr.P.C. there are allegations of sexual assault but the statement U/S 164 Cr.P.C. is at a higher pedestal having been recorded before the Magistrate and in absence of any categorical statement by the prosecutrix that she was sexually assaulted, there is no ground or any material to frame charges under the provisions of POCSO Act and consequently has rejected the application.

7. Learned counsel for revisionist while assailing the impugned order has submitted that there was substantial material before the Magistrate concerned and consequently it was incumbent upon him to have framed charges under the POCSO Act. He further submit that at the stage of framing of the charges, the Magistrate should not have weighed the evidences in favour of either of the parties and that stage would come subsequently but in case a cognizable offence is made out from the material on record, then it was mandatory to frame a charge and by not framing the charge under the POCSO Act he has committed an error which can be rectified by this Court in exercise of powers under Section 397 of Cr.P.C.

8. Learned A.G.A. on the other hand has opposed the revision. He has submitted that at the stage of framing of charges, it is the discretion of the court and undoubtedly from the material available before him all the ingredients constituting the offence ought to be made out prima facie to constitute the said charge. For the sake of convenience provision of Section 240 of Cr.P.C. is quoted as under:- "240. Framing of charge. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

9. From the aforesaid provisions, it is noticed that at the stage of framing of charges, the Magistrate has to duly taken into account and consider the material before him as submitted by the investigating agency and in case he is of the opinion there are grounds for presuming that the accused has committed a particular offence then he shall frame said charge in writing against the accused.

10. The dispute in the present case is as to whether it was incumbent upon the Magistrate at a particular stage of framing of the charge under the POCSO Act. There is no dispute with regard to the fact that initially the first information report was lodged under Sections 363A, 368 I.P.C. stating that his minor daughter is missing from home. Subsequently the prosecutrix was traced out and a statement was recorded under Section 161 Cr.P.C. where she said that she has gone on her own accord and started living with the accused. She has further stated that she has got marriage and they have also developed physical relations.

11. The main plank of the arguments of the revisionist is relying on the statement U/S 161 Cr.P.C. From the said Section prima facie an offence of the provisions of POCSO Act is made out but subsequently the prosecutrix was examined U/ S 164 Cr.P.C. before the Magistrate where she has clearly stated that she has got married to the accused who has not committed any wrong upon her meaning thereby she had denied any sexual assault with or without consent by the accused. In this regard, the trial court had after weighing the two evidences had found that there is no credibility and credence to statement recorded U/S 164 Cr.P.c. rather than statement U/S 161 Cr.P.C. inasmuch as the Statement U/S 164 Cr.P.C. has been recorded in the presence of the Magistrate which has more evidenciary value rather than the statement recorded under Section 161 Cr.P.C. during investigation by the Investigating Officer.

12. A Division Bench of this Court in the case of Raju Vs. State of U.p. & Others, 2012 (18) ACC 111, has discussed that statement under Section 164 of Cr.P.C. holds more sanctity n the yes of law. The relevant para is as under:- "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. 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. It could never be put at par with a statement under Section 161 and as such it could never be said to be a part of case dairy."

13. It is in the aforesaid circumstances, at this stage he has not framed charges. He was of the considered view that there is no requirement of framing charges under the POCSO Act. In the revisional jurisdiction, the court would interfere in exercise discretion by the Magistrate if the same is found to be illegal, arbitrary and contrary to record or in case the Magistrate has framed charges without there being any material or despite disclosure of material he has declined to frame charges. In the present case, this Court finds that he has taken into account the statement of the prosecutrix under the provisions of Section 164 of Cr.P.C. and he has relied upon the statement of the prosecutrix exonerating the accused on all the offences under the POCSO Act. This Court finds that the trial court was within its competence on the basis of material on record to come to a conclusion which he has done in the present case.

14. At the stage of framing of charges, this Court does not find any error that he has declined to frame charges under the POCSO Act inasmuch as there is no denial of the fact that from a bare reading of Section 164 Cr.P.C. no offence of the POCSO Act is made out. With regard to the framing of charge under any other provision than what has been framed is not conclusive at the stage of framing of charges because the Code of Criminal Procedure further provides that if any stage of proceedings there is a disclosure of the cognizable offence then the charge can be framed at that stage if there is substantial material available. Accordingly, this Court does not find any error in the discretion exercised by the Magistrate at a particular stage of declining to frame charge under the POCSO Act. Undoubtedly, if during the trial any other material is cogent and reliable material comes before the Magistrate, disclosing any other cognizable offence he would be at liberty to proceed in accordance with law and frame appropriate charge. Accordingly, I do not find any infirmity in the impugned order and therefore the present criminal revision is bereft of merits and is accordingly dismissed. Order Date :- 10.4.2025/Ravi/ (Alok Mathur, J.) RAVI SHANKAR SRIVASTAV RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench