- (1.) The present revision petition has been filed by the petitioner challenging the order dated 25.7.1998 passed by the Sessions Judge, Sirohi in Criminal Revision Petition No. 05/1998, whereby he has set aside the order dated 25.3.1998 passed by the Judicial Magistrate, Sirohi in FIR No. 43/1997 of the Police Station, Sheoganj registered for the offences under Sections 342 and 376 IPC, whereby the learned Magistrate refused to commit the accused-petitioner for trial in a Sessions Case.
(2.) Assailing the impugned order passed by the Revisional Court, learned counsel for the petitioner submits that in this case the FIR was filed by the prosecutrix Mst. "P" with the Superintendent of Police, Sirohi regarding the allegation of petitioner having committed forcible rape upon her. Thereafter during the course of investigation, the said prosecutrix herself made an application to the learned Magistrate, Sheoganj for recording her statement under Section 164 Cr.P.C. and thereafter the statement of the prosecutrix was recorded under Section 164 Cr.P.C. on her application. Learned counsel submits that in this statement, the prosecutrix exonerated the accused-petitioner but the investigating agency, whilst leaving out the said statement from the charge-sheet, proceeded to file the charge-sheet against the accused-petitioner, whereupon the fact of the said statement having been recorded was brought to the knowledge of the concerned Magistrate, who took the statement of the prosecutrix on record and thereafter refused to take cognizance against the accusedpetitioner and discharged him from the offences under Sections 376 and 342 IPC. Learned counsel submits that the police has made a foul-play in the matter by concealing the statement of the prosecutrix recorded under Section 164 Cr.P.C. and, thus, the learned Magistrate has rightly called for the said statement and then took the same on record. Learned counsel submits that the irrefutable conclusion, as per the statement of the prosecutrix recorded under Section 164 Cr.P.C. was that the accused-petitioner has been falsely implicated in this case and, thus, he submits that the revisional court had committed grave error in setting aside the well-reasoned order of the learned Magistrate. He, thus, argues that the impugned order of the revisional court be set aside and the order of the learned Magistrate may be restored. Learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in State of U.P. Vs. Lakshmi Brahman & Anr., 1983 AIR(SC) 439in support of his arguments.
(3.) Per contra, learned Public Prosecutor has opposed the prayer made by the learned counsel for thepetitioner. I have given my thoughtful consideration to the rival arguments advanced at the bar, perused the impugned order as well as the record of the case.;