NARAYAN SHUKLA, J. - (1.) HEARD Mr. Dev Kumar Tripathi, learned Counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi, learned Addi­tional Government Advocate for the State. The petitioner has challenged the order dated 18th of June, 2010 passed by the Judi­cial Magistrate, Pratapgarh in Miscellaneous Case No. 51 of 2010 treating the application moved under section 156(3) of the Code of Criminal Procedure as a Complaint Case. Upon perusal of the complaint, I find that there is an allegation of rape, which requires the medical examination of the victim also under section 164-A of the Code of Criminal Procedure.
(2.) SECTION 202 of the Code of Criminal Procedure empowers the Magistrate to di­rect an investigation to be made by a police officer provided that no such direction for investigation shall be made where it ap­pears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. Indisputadly, the offence of rape is triable exclusively by the Court of sessions, therefore, if trial is permitted under the present complaint case, the learned Magis­trate is not empowered to direct for medi­cal examination, which is a necessary evi­dence in the offence of rape. Therefore, I am of the view that the order impugned is unsustainable and the same is nereby quashed with the direction to the learned Magistrate to pass an appropriate order on the petitioner's application in light of the observation made as above. With the aforesaid observation/direc­tion, the petition is disposed of finally. N Petition Disposed Off Accordingly.;