- (1.) S. K. Agarwal, J. Heard learned counsel for the applicant and the learned A. G. A.
(2.) THE arguments advanced by the learned counsel for the applicant before me is that the learned Sessions Judge was not entitled to decide the revision of the opposite party arising out of the rejection of his objection application by the learned Magistrate. THE objections were preferred against the summoning order. THE ac cused-applicant was summoned under Section 354, I. P. C. and Section 504 along with Section 376, I. P. C. That objection was not considered by the learned Magistrate and a date was fixed for commitment of the case to the Court of Session. THE objection raised before the learned Magistrate was that he may be discharged under Section 376, I. P. C. on the ground that prima facie, no offence is disclosed under that section. This plea was supported by the fact that the allegation of commission of rape upon the prosecution was made on 1-10-1997 in an application made to the S. S. P. , which was forwarded to the Investigating Officer, who, after converting the case to one under Section 376, I. P. C. , submitted a charge-sheet under that Section. Prior to this ap plication, an F. I. R. was also lodged by the prosecutrix herself at the police station on 29-9-1997 with regard to an incident that had taken place on 28-9-1997. In that F. I. R. the only allegation made by her against the opposite party was that he had molested her by striking at her breast and also made an attempt to drag her in the sugar- cane field. Her cries attracted her father-in-law to the scene of incident. THE accused thereafter took to his heels riding a bye-cycle from the spot. The learned Magistrate, while con sidering the objection of the opposite party, Samod Yadav, had returned a find ing that she in her re-examination under Section 161, Cr. P. C. stated the fact of commission of rape upon her. He had also gone on record further to state that the medical report also supports her case. Against the order rejecting the ob jection the accused had preferred a revision before the Sessions Judge, Agra and the learned IX Additional Sessions Judge, Agra Sri K. K. Yadav, has allowed the revision on the ground that the second application was moved by Charan Singh, the husband of the prosecutrix. This Charan Singh is a Home guard and this bears his signature also along with thumb impression of his wife, Smt. Sabitri Devi. The learned Additional Sessions Judge has further stated that the only witness available in this case was, apart from the prosecutrix, her father-in-law, Mohar Singh. The statement of Mohar Singh shows that the applicant has only molested the lady, Sabitri. A charge-sheet under Sections 354 read with Section 504, I. P. C. was also submitted initially by the police, but on a further investigation directed by the S. S. P. , a supplementary charge-sheet was submitted with regard to the commis sion of offence under Section 376, I. P. C. The first F. I. R. of the incident dated 28-9-1997 was registered at the police station on 29-9-1997. It was an oral report, which was transcribed by the Head Moharir on the dictation of the two, husband and wife. The learned Sessions Judge was of the opinion that since Charan Singh was a literate per son and a home guard it is not expected of him to have missed this fact from transcribing in his first F. I. R. The other reason given by the learned Sessions Judge in allowing the revision was that the medi cal avidence does not support allegation of rape. The medical report, according to him, is that no opinion with regard to rape can be given. This finding is contrary to the evidence discussed by the learned Magistrate. The learned Magistrate has stated in his order that the medical evidence supports the case of the prosecution with regard to rape. The fact remains that the medical report does not express any opinion with regard to rape and the finding returned by the learned Sessions Judge on this issue appears to me premature.
(3.) ONE of the arguments further raised by the learned counsel for the ap plicant is that the objections before the learned Magistrate in a case triable by the Court of Sessions are not maintainable and no revision against that order lies. So far as this argument is concerned, no doubt that the learned Magistrate was not entitled to discharge the accused person, as claimed by him in his objections under Section 376, LP. C but so far as the learned Sessions Judge is concerned, in a revision he can do so. The objection of the learned counsel for the ap plicant that it can be done only under Section 227, Cr. P. C is sound and sustained. So far as the maintainability of the revision is con cerned, it is maintainable. When the remedy for discharge is available specifically under Section 227, Cr. P. C, the learned Sessions Judge in exercise of his revisional power should not have looked into these facts and circumstances at this stage knowing fully well that there is a provision for discharge in the Code of Criminal Procedure for the cases triable before the Court of Sessions. That stage has not yet arrived. The order of the Magistrate was correct because he was precluded from exercising this power in the present. He has no option but to sum mon an accused if a challan is received in a case triable by a Court of Sessions. The scope of enquiry is extremely restricted. The consideration of the facts, as made by the learned Sessions Judge, were imper missible at the stage at which it has been done by him. He should have either postponed the hearing of the revision till the date the case was committed to the Court of Sessions and then transfer that revision to the Court concerned to which the trial was allotted which should have heard the revision and decided the objection raised therein in accordance with the provisions of Section 227, Cr. P. C. treating the revision as an objection to framing of charge. In the circumstances this exercise of power no-doubt is premature by the learned Addl. Sessions Judge. In a case to be decided by a Court of Sessions the Magistrate do not have the powers to decide the objections by enter ing into merit of that case. In the circumstances this revision is allowed and the learned Sessions Judge is directed to transfer this revision to the Court where the case is committed and trial is pending. That Court will consider these objections in the light of the provisions of Section 227, Cr. P. C. and will pass a speaking order in accordance with law. Revision allowed. .;