P. D. KUDAL, J. - (1.) THIS is an application under Section 482, Cr. P. C. 1973, praying that the criminal proceedings initiated against the petitioner by the learned Munsiff and Judicial Magistrate, Shri Madhopur, be quashed.
(2.) BRIEF facts of the case which are relevant for the disposal of the present petition are that the petitioner is an old man of 73 years as per the medical examination and the certificate issued by Dr. K. G. Pareek, Medical Officer, Primary Health Centre, Mundre, district Sikar. The Medical Officer has further opined that he is a patient of palpitation and cardiac asthama and suffering from general debility. He has further opined that the accused-petitioner Gulkand is incapable of performing sexual intercourse. On 6th November 1977, Mst. Bhuri, aged 72 years, widow of Ghandmal lodged a report at the Police Station, Shri Madhopur that the accused-petitioner came to her house in the night and committed rape on her. A report was lodged with the police and a case under Section 376, IPC was registered. As a result of medical examination it was found that there is no loss of buttons of blouse and no tearing of clothes. There was no blood-stains over the dhoti and petticoat. No seminal stains over dhoti and petticoat on the front and on the back of the petticoat were found. On the examination of the body of the prosecutrix it was found that there were no marks of scratches, bruises over the fore-arms, wrist, fact, breast, chest, and lower part of abdomen. She was found to be having normal guilt and no difficulty in walking. No seminal stains or blood-stains were found on the external genitals. No bruises, lacerations over external genitals were found No swelling redness and inflammation was seen. There was no bleeding from vagina. No speramatoree was seen under high power of microscope. There were no spermatorce seen on the public hair. In the opinion of the Doctor there was no evidence of sexual intercourse. It was contended that the police made a thorough investigation of the case, recorded the statements of Phool Chand, Mali Ram, Om Prakash, Baney Singh, Karan Singh, Narain son of Choosa Ram, Salag Ram, Birdi Chand, Ramjilal, Baldev Raj, Ram Pratap, Ganesh Singh and Mst. Bhurki. The accused-petitioner was also medically examined, Doctor found no blood-stains and no seminal stains. The Doctor found no scratches, and teeth-bite on the face, fore-arm and other parts of the body. No marks of injury on the body were found. The Medical Officer opined that there was no evidence of sexual intercourse. The case was investigated by the Dy. S. P. , Neem-Ka-Thana who submitted a final report. The investigating agency came to the conclusion that actually no rape was committed on Mst. Bhuri by the accused and a false report was lodged simply to black-mail him and to get Rs. 1,500/ -. The rape is alleged to have been committed in the night intervening 4th and 5th November, 1977. FIR was lodged at 3 30 p. m. on 6th November, 1977. On 6th February, 1978, Mst. Bhuri filed a private complaint. On 7th February, 1978 the statement of Mst. Bhuri was recorded under Sec. 200, Cr. P. C. , and the cognizance was taken by the learned Magistrate. On 15th January, 1978, Mst. Bhuri had also filed a petition alleging therein that the investigating agency is likely to file a final report stating that no case is made out, but this report of the investigating agency should not be accepted. On 14th March, 1978, the learned Magistrate considered the final report filed by the investigating agency, and registered a case under Sec. 376/456, IPC against the accused-petitioner. It is against this initiation of this proceeding that the present petition under Sec. 482. Cr. P. C. , 1973 has been filed. Notice of this application was given to the prosecutrix Mst. Bhuri. She has appeared before this Court and has filed an application dated 24th October, 1978 stating that the accused-petitioner, who is now aged 74 years, is a resident of her village. She has further contended that the accused is aged 73 years and she does not wish to prosecute the present complaint. She has further prayed that the petition filed by the accused-petitioner Gulkand be accepted and the complaint filed by her be dismissed. She has been identified by her counsel Shri Kailash Nath appearing on her behalf has also pleaded before this Court regarding the quashing of the original proceedings pending against the accused-petitioner. The learned counsel for the accused-petitioner has contended that the cognizance of the private complaint filed by Mst. Bhuri was taken by the learned Magistrate on 7th February, 1978, when her statement under Sec. 200, Cr. P. C. was recorded by the learned Magistrate. It was further contended that as the case under Sec. 376, IPC was exclusively triable by the Court of Session, the learned Magistrate did not follow the proviso to sub-section (2) of Sec. 200, Cr. P. C. , which provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce ail his witnesses and examine them on oath. In the instant case, having taken cognizance of the complaint on 7th February, 1978, the learned Magistrate did not call upon the complainant to produce all the evidence. As a matter of fact, on 14th March, 1978, cognizance was taken when the final report was filed by the police. Reliance was placed on Jawana Singh vs. Bhadai Shah (1) wherein it has been held that when cognizance has already been taken by the Magistrate on a private complaint no cognizance could have been taken on the report of the investigating agency, and in doing so the learned Magistrate acted without jurisdiction. The present case has peculiar features. The prosecutrix is stated to be 72 years of age. The accused-petitioner who is charged for the offence of committing rape over her is 73 year of age, and the medical examination shows that he is incapable of performing sexual intercourse. Though, the offence was committed on the night intervening 4th and 5th November, 1977, yet the report was lodged with the police on 6th November, 1977 at about 3. 30 p. m. The medical report does not support the contention of the prosecutrix that rape was committed over her. The investigation has been conducted by an officer of the police of the rank of Deputy Superintendent. The investigating agency has opined that this is a false case, and the complaint has been lodged only with a view to black-mail the accused-petitioner. The prosecutrix has appeared before this Court and has submitted an application that now she does not want to proceed with the case as the accused-petitioner is a resident of her village and that the dropping of the criminal proceedings would be in her interest. The proceedings against the accused-petitioner cannot be dropped on the strength of the application, which has now pending filed by the prosecutrix before this Court. But the basic question which has to be considered is that the prosecutrix is not prepared to support the complaint. The Medical Officer has opined that there is no evidence of sexual intercourse having been done with the prosecutrix. The investigation conducted by the Deputy Superintendent of Police has revealed that the case is totally false and has been instituted with a view to black mail the accused petitioner. The learned Magistrate has taken cognizance on the final report on 14th March, 1978 despite the fact that he had taken cognizance of the private complaint on 7th February, 1978, when the statements of Mst. Bhuri were recorded under Section 200, Cr. P. C. This procedure adopted by the learned Magistrate is illegal and without jurisdiction. This Court is quite conscious that the power under Section 482, Cr. P. C. should be very sparingly used. But looking to the entire facts and circumstances of the case, it appears that the prosecution has been launched with some ulterior motive, probably, with a view to black-mail the accused-petitioner. The medical certificate produced by the accused-petitioner shows that he is incapable of performing any sexual intercourse. The age of the prosecutrix is 72 years, while that of the accused petitioner is 73 years. The age factor also cannot be lost sight of. Looking to all these facts and circumstances of the case, it appears that the prosecution has been launched falsely and vexatious and that it would be in the interests of justice to prevent the abuse of the process of the Court and, therefore, powers under Section 482, Cr. P. C. , 1973, should be invoked and the prosecution launched against the accused-petitioner either on the basis of the private complaint, or on the basis of the police report be quashed. The application under Section 482, Cr. P. C. filed by the accused-petitioner is allowed and the prosecution launched against him for an offence under Section 376/456, IPC is hereby quashed. . ;