P. D. KUDAL, J - (1.) THIS is application under sec. 482, Cr. P. C. for quashing the order dated 23-10-1978 in Criminal Case No. 386 of 1978 Ghooriya vs. Kalji, pending in the Court of Additional Munsiff & Judicial Magistrate, Karauli.
(2.) BRIEF facts of the case which are relevant for the disposal of this application are that Ghooriya filed a complaint against the petitioner in the Court of the learned Addl. Munsiff & Judicial Magistrate, Karauli on 7-7-1978. It was alleged in the complaint that Mst. Bajrangi, wife of Kakodiya was sleeping alone in her house in the night intervening 24th and 25th June. 1978. Her husband and her father-in-law had gone to village Aduda. Kakodiya is the nephew of the complainant. The accused-petitioner along with one Sugania entered the house where Mst. Bajrangi was sleeping. The accused-petitioner committed sexual inter course on Mst. Bajrangi against her will. Hearing her cries the complainant Ghooriya and one Gheesa came to the spot. The accused-petitioner Kalji then ran away. It is further contended that the complainant approach the Police Station, Sapotra, but he did not get any response from the Police Station. On the other hand, Kalji, who is a peon of the Tehsildar there, lodged a report under sec. 107, Cr. P. C. and got the complainant arrested on 30-6-1978. After having been released the complainant filed this complaint on 7-7-1978 The complainant filed a list of witnesses on 10-7-1978. According to this list, there were eight prosecution witnesses. The statement of the complainant was recorded on 10-7-1978 and on 18-7-1978, the statement of Mst. Bajrangi and Kakodiya were recorded. On 8-8-1978, the statement of Gheesa was recorded, and the prosecution evidence was closed. In the proceedings dated 7-7-1978. it has been observed by the learned Magistrate that in the evidence recorded at the preliminary stage, the statement of Gheesa has been recorded and the prosecution evidence has been closed. On 23-10-1978 the learned Magistrate registered a case under sec. 376, IPC against the accused Kalji. He further ordered that on furnishing the list of witnesses and process fee for issue of warrant of arrest within seven days, the accused be produced before him on 3-11-1978. It has been contended on behalf of the accused-petitioner that an offence under sec. 376, IPC is exclusively triable by a Court of Session, and that the learned Magistrate did not comply with the mandatory provisions of the proviso to sub-sec. (2) of sec. 202, Cr. P. C , 1973. It has been further contended that a great prejudice has been caused to the accused-petitioner inasmuch as the warrant of arrest has been issued against him when there was no medical evidence to support the case of rape and in the absence of the medical report and medical examination, the learned Magistrate has seriously erred in law in taking cognizance of an offence under sec. 376, IPC, and in issuing a warrant of arrest against the accused-petitioner. It has been further contended that according to the provisions of sec. 202, Cr. P. C. 1973, it was incumbent upon the learned Magistrate to have examined all the witnesses which were mentioned in the list of witnesses submitted on behalf of the prosecution. On behalf of the complainant, it has been contended that the proceedings taken by the learned Magistrate are in conformity with law and that no interference is called for by invoking the provisions of sec 482, Cr. P. C, It was also contended that the complainant had closed his evidence vide proceedings dated 8-8-1978 and as such, the learned Magistrate had, in substance, complied with the provisions of sec. 202, Cr. P. C. Reliance was placed on Smt. Nagawya vs. Veerappa Shivalingappa Nonjilgi (1) and M. N. Reddy vs. Kanakanti Mal Reddy (2 ). Reliance was placed on Prabhu Lal vs. Parmanand in S. B. Criminal Misc. Petition No, 584/1976 decided on 12-1-1979.
(3.) ON behalf of the State, it was contended that the learned Magistrate has acted in conformity with the provisions of sec. 202, Cr. P. C, 1973, and that no interference is called for by invoking the extraordinary powers vested in this Court by virtue of sec. 482, Cr. P. C. On behalf of the accused-petitioner reliance has been placed on Madhu Limaye vs. State of Maharashtra (3), R. P. Kapur vs. State of Punjab (4); Sanjay Gandhi vs. Union of India (5); Paranjothi Udyar vs. State (6) and Babu Ram vs. State of U. P. (7 ). Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. ;