DINESH GAUTAM Vs. STATE OF M.P.

JUDGEMENT

(1.) The criminal revision under Section 397/401 of Cr.P.C. has been filed against the order dated 3.7.2018 passed by Special Judge (Atrocities), Gwalior in Special Sessions Trial No.143/2018 by which the Special Judge after rejecting the closure report filed by the police has taken the cognizance of offence punishable under Section 376 of IPC and under Sections 3(1)(W) and 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

(2.) The necessary facts for the disposal of the present revision in short are that the prosecutrix/respondent No.2 lodged a FIR to the effect that she is the resident of Jahagir Katra and every Saturday she goes to chant Bhajan. Because of her frequent traveling she knows the applicant who had told that he is the resident of Village Hingona Khurd, District Morena. As the applicant was known to her, therefore, she started going along with the applicant on his four wheeler. At about 11:00 AM, the applicant gave her lift for going to Datia and took her to a place situated behind the Indane Gas Godown and committed rape on her. She was threatened and the applicant after leaving her, ran away. As the husband of the prosecutrix is a heart patient, therefore instead of informing him, she informed the incident to her younger brother-in-law (Devar) namely Mahesh Sharma and the FIR was lodged. Thereafter, statements of the witnesses were recorded and the statement of the prosecutrix was also recorded under Section 164 of Cr.P.C. The moment, the applicant came to know about the false FIR lodged against him, he immediately contacted the Superintendent of Police, Gwalior and made an application pointing out his false implication and also specifically stated that he had never met with the prosecutrix and he even did not know her. Thereafter the enquiry was conducted and during enquiry the prosecutrix submitted an application to the Deputy Superintendent of Police, AJAK, Gwalior along with an affidavit in which she had stated that in fact the applicant is not the person against whom she had lodged the FIR. It was mentioned that the person who had committed rape on her had disclosed his name as Dinesh Gautam but he was some other person. Thereafter, the supplementary statement of the prosecutrix was recorded. The test identification parade of the applicant was conducted in which the prosecutrix did not identify the applicant and after concluding the investigation, the police filed the closure report. It is further submitted that on 3.7.2018 when the police submitted the closure report, then at the same time the complainant/respondent No.2 was also present in the Court but she did not raise any objection. However, in spite of sufficient material which has been collected by the police, the Special Judge refused to accept the closure report and has taken cognizance of offence punishable under Section 376 of IPC and under Sections 3(1)(W) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

(3.) It is submitted by the counsel for the applicant that when the applicant came to know about his false implication, then he immediately approached the Superintendent of Police, Gwalior and the prosecutrix/respondent No.2 herself filed an application along with the affidavit mentioning therein that the applicant has not committed the offence and the person who had committed the offence is somebody else and in spite of the fact that at the time when the closure report was filed, the prosecutrix/respondent No.2 herself was present in the Court, the Special Judge has committed material illegality by taking cognizance of the offence.