The Court emphasized the importance of considering the prima facie test at the stage of taking cognizance, based on the complainant's consistent allegations, and disregarding the Investigating Agency's negative report.

1. - The present petition has been preferred by the accused aggrieved against the order passed by the Revision Court dated 15.12.2011, whereby the Revisional Court had set aside the order dated 16.8.2007 passed by Judicial Magistrate No. 1, Sujangarh, District Churu.

2. The complainant in the present case, had levelled specific charges of an attempt to outrage the modesty of the prosecutrix on the part of the accused-petitioner.

3. During investigation, the statement of the prosecutrix was recorded. She reiterated the allegations against the petitioner. However, the Investigating Agency recorded the statement of various other witnesses, to arrive at a . conclusion that no such incident had taken place and had submitted the negative report in final form absolving the accused petitioner of the offence. The Court of Magistrate accepted negative report presented in final form.

4. Aggrieved against the same, the complainant filed a revision petition. The Revisional Court considered the statements made by the complainant and came to conclusion that there is sufficient material to take cognizance of offence under Sections 457 and 354 I.P.C. Having held in above terms, the matter was remitted back to the Trial Court to proceed in the matter in accordance with the provisions of law.

5. Shri Gaurav Singh, appearing for the petitioners has not been able to impeach the statement made by the complainant wherein specific allegations have been levelled against the petitioners. However, Shri Gaurav Singh has submitted that the Court below had not taken into consideration the statements of other witnesses, who had absolved the accused of the crime.

6. After hearing counsel for the parties, this Court is of the view that this Court cannot ignore that the complainant Muli Devi consistently maintained her version. At the time of taking cognizance, the Court cannot proceed in the matter as it is delivering the judgment of conviction or acquittal. At the time of taking cognizance, test of prima facie is to be applied. Truth and veracity of allegation is not to be determined by holding that the same are not probable. The order passed by the Revisional Court suffers from no infirmity and rightly order of the Trial Court was set aside, whereby it had refused to take cognizance of the offence.

7. At this stage, Shri Gaurav Singh, appearing for the petitioner has submitted that the occurrence in the present matter had taken place on 12.5.2006 and furthermore, taking into account the fact that the Investigating Agency absolved the petitioners, the personal appearance of the petitioners in the Trial Court exempted.

8. I find merit in the alternative submission advanced by the learned counsel for the petitioners, personal appearance of the petitioners before the Trial Court is exempted, subject to following conditions :

(a) That the petitioners shall file an undertaking that during the trial of the petitioners, they shall be represented through their counsel.

(b) That the undertaking shall specifically state that the evidence recorded in absence of the petitioners but in the presence of their counsel shall be binding upon them.

(c) That the petitioners shall undertake to appear before the Trial Court at the time of framing of charge, recording of statement under Section 313 Cr.P.C., at the time of delivery of judgment or at any other time, when Trial Court may seek their presence.

(d) That to facilitate exemption of the personal appearance of the petitioners in the Trial Court, the summoning Court is directed to accept bail bonds of the petitioners, upon their appearance in the Court. The bail bonds so furnished shall enure, during the course of the
Petition disposed of.

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