Point of Law: Kidnapping, abducting or inducing woman to compel her marriage - It is crystal clear that while considering protest petition concerned Court has to act upon material available before Court, that is material which is part of case diary.

JUDGMENT :

Saroj Yadav, J.

Heard learned counsel for both the sides.

This criminal appeal has been filed under Section 14A (1) of The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against the order dated 19.12.2020 passed by Special Judge SC/ST Act/Additional District and Sessions Judge, Court No.2, Unnao in Case Crime No.30 of 2018, under Sections 363, 366 Indian Penal Code (hereinafter referred as I.P.C.) and Section 3(1) (dha) of SC/ST Act, Police Station Purwa, District Unnao, whereby the Protest application filed by the appellant was rejected.

The brief facts necessary for deciding this appeal are as under:-

The appellant/complainant got registered F.I.R. under Sections 363 and 366 I.P.C. and Section 3(1) (dha) of SC/ST Act, against the accused Gyan Bahadur Singh alleging that the accused enticed away the daughter of the complainant. After investigation the police submitted the final report on the basis of evidence collected. In the statement given to the Investigating Officer and also under Section 164 Cr.P.C. the victim (daughter of the complainant) stated that she has love affair with the accused/complainant and wanted to marry him. She went with the accused/complainant on her own sweet will. The victim was found major in the radiological examination report and also on the basis of the date of birth i.e. 25.06.1999.

The appellant/complainant moved protest petition before the court below rejecting the final report submitted by the Investigating Officer. The learned court below after hearing the complainant came to the conclusion that protest petition does not have any force and deserves to be rejected and final report submitted by the investigating officer deserves to be accepted. Consequently, learned court below rejected the protest petition and accepted the final report.

Being aggrieved by this order, the appellant/complainant have come before this Court for setting aside the order, so passed.

Learned counsel for the accused/appellant argued that trial court has not considered the affidavit filed by the victim annexed as Annexure No.8 and rejected the protest petition. It has also been submitted that there is ample evidence to proceed against the accused, but the learned trial court did not consider the same. So the impugned order should be set-aside.

Contrary to it learned A.G.A. has supported the impugned order and submitted that while considering the protest petition only that evidence can be considered which is a part of the case diary. The affidavit filed as Annexure No.8 is not a part of the case diary. The victim in her statement under Section 161 and 164 Cr.P.C. has stated that she herself went with the accused/complainant and she is a major girl.

Considered the rival submissions and perused the documents available on record.

It is well settled law that while considering the ptotest petition the court has to take into consideration only that material/evidence which is part of the case diary.

The Hon'ble Supreme Court in the case of Dharam Pal and Ors. Vs. State of Haryana and Anr. 2014(3) SCC 306, in this regard has laid down as under:-

"This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court"

The Division Bench of this Court in Pakhandu and others Vs. State of U.P. and another, 2001(43) ACC 1096 has laid down as under:

" Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the f