Lekh Ram vs State Of Rajasthan And Ors

The instant criminal revision has been filed by the petitioner against the order dated 01.07.2017 passed by the learned Additional Sessions Judge, Hanumangarh, by which, the trial court took cognizance against the petitioner for offence under Section 376 read with Section 109 IPC on the application under Section 319 Cr.P.C. filed by the prosecutrix and issued warrant of arrest against the petitioner.

Learned counsel for the petitioner submits that one affidavit has already been filed by the prosecutrix, which has been admitted by the prosecutrix in her statement as PW-2. He also submits that the petitioner was 14 years of age at the time of occurrence. The said fact has also not been considered by the trial court while passing the impugned order. In these circumstances, the order taking cognizance is per se illegal and deserves to be set aside.

Per contra, the learned Public Prosecutor and the learned counsel for the respondent No.2-complainant contended that in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. as well as in the court statement, in which she has been examined as PW-2, the prosecutrix has clearly named the accused-petitioner and active role has been assigned to him. Therefore, no interference is called for in the impugned order.

I have considered the arguments and gone through the record of the case.

The prosecutrix in her statement under Section 161 Cr.P.C. and Section 164 Cr.P.C. as well as in court statement named the present petitioner and active role has been assigned to him. Thus, the order impugned taking cognizance is perfectly justified. So far as affidavit filed by the prosecutrix is concerned, it will be considered at the final stage of the trial. However, since the trial court on the first count itself issued the arrest warrant against the petitioner, this Court is of the opinion that arrest of warrant issued against the petitioner should be converted into bailable warrant because the police after thorough investigation submitted negative Final Report in this case.

In view of the above, the order dated 01.07.2017 taking cognizance passed by the trial court is modified only to the extent of issuing arrest warrant against the petitioner. Accordingly, the arrest warrant issued against the present petitioner is converted into bailable warrant in the sum of Rs.50,000/-. The learned trial court shall issue bailable warrant against the accused-petitioner to secure his presence in the court.

With these observations, the revision petition is disposed of.