Case Summary
| Citation | Ajay Kumar Parmar v. State Of Rajasthan2012 (9) SCALE 542 |
| Keywords | sec 164, 209,160,207 CrPC and sec 342,376 IPC |
| Facts | During the course of the investigation, he prosecutrix made an application to the learned Magistrate, Sheoganj, requesting the recording of her statement under Section 164 of the Criminal Procedure Code (Cr. P.C). Subsequently, the statement of the prosecutrix was recorded as per her application. The counsel for the accused-petitioner argues that in this statement, the prosecutrix cleared the accused-petitioner of any wrongdoing. However, the investigating agency omitted this statement from the charge-sheet and proceeded to file the charge-sheet against the accused-petitioner. The concerned Magistrate was later informed about the recorded statement, and upon reviewing it, refused to take cognizance against the accused-petitioner and discharged him from the offences under Sections 376 and 342 of the Indian Penal Code (IPC). The counsel contends that the police concealed the statement of the prosecutrix recorded under Section 164 Cr. P.C, and the Magistrate rightly called for the statement and took it on record. |
| Issues | Whether the Magistrate had the jurisdiction to acquit the accused-appellant? |
| Contentions | |
| Law Points | An FIR was registered for an offence under S.376 which is exclusively triable by the Session Court. The Judicial Magistrate denied taking cognizance of the offence and also acquitted the accused-appellants after taking the statement of the prosecutrix without identifying her under S.164 in which the prosecutrix had resiled from her earlier statements. The Apex Court while referring to various decisions of earlier cases held that the Magistrate is not empowered to decide whether a prima facie case has been made or not. If he does so as was earlier provided in S.207A of the Old Code, it will go beyond the legislative intent. S.209 of the CrPC provides that the Magistrate shall commit the case which is exclusively triable by the Session Court to the Session Court. *The statement before the Magistrate under Section 164, CrPC by a person other than the accused can be recorded only when the person is produced by the police, as observed in “Jogendra Nahak and Ors. v. State of Orissa and Ors. (1999)”. *In the present case, no police had produced the prosecutrix before the Magistrate.The person making a statement before the Magistrate shall be personally known by the Magistrate or identified by any other person, as observed in “Mahabir Singh v. State of Haryana, 2001”. *The committal court is not empowered to decide whether a prima facie case has been made or not. If it does so as was earlier provided in S.207A of the Old Code, it will go beyond the legislative intent, as observed in Sanjay Gandhi v. UoI (1978). *A Magistrate can not proceed with trial of an offence exclusively triable by the Session Court and acquit the accused. *The Magistrate cannot consider the evidence which has been produced in the defence by the appellant, he can only consider the documents which has been submitted by the investigating agency along with the chargesheet. *The Magistrate can refuse under S.190, CrPC to take cognizance of the offence only if he is satisfied that the complaint, case diary and statements of witnesses do not make out any offence. *It is necessary to give notice to the complainant before dropping the proceedings, which has not been given in the present case. |
| Judgement | Appeal dismissed.The judgment of the revisional court and the High Court is upheld. |
| Ratio Decidendi & Case Authority |
Full Case Details
Dr. B.S.CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment and order dated
9.1.2012 passed by the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal
Revision Petition No. 458 of 1998, by way of which, the High Court has upheld the judgment
and order dated 25.7.1998, passed by the Sessions Judge in Revision Petition No. 5 of 1998.
By way of the said revisional order, the court had reversed the order of discharge of the
appellant for the offences under Sections 376 and 342 of the Indian Penal Code, 1860
(hereinafter referred to as the dated 25.3.1998, passed by the Judicial Magistrate, Sheoganj.
2. The facts and circumstances giving rise to this appeal are as follows:
A. An FIR was lodged by one Pushpa on 22.3.1997, against the appellant stating that the
appellant had raped her on 10.3.1997. In view thereof, an investigation ensued and the appellant
was medically examined. The prosecutrix’s clothes were then also recovered and were sent for
the preparation of FSL report. The prosecutrix was medically examined on 22.3.1997, wherein
it was opined by the doctor that she was habitual to sexual intercourse, however, a final opinion
regarding fresh intercourse would be given only after receipt of report from the Chemical
Examiner.
B. The statement of the prosecutrix was recorded under Section 161 of Code of Criminal
Procedure, 1973, (hereinafter referred to as `the Cr.P.C., by the Dy.S.P., wherein she narrated
the incident as mentioned in the FIR, stating that she had been employed as a servant at the
residence of one sister Durgi for the past six years. Close to the residence of sister Durgi, Dr.
D.R. Parmar and his son Ajay Parmar were also residing. On the day of the said incident, Ajay
Parmar called Pushpa, the prosecutrix home on the pretext that there was a telephone call for
her. When she reached the residence of Ajay Parmar, she was raped by him and was restrained
from going out for a long period of time and kept indoors without provision of any food or
water. However, the next evening, she was pushed out surreptitiously from the back exit of the
said house. She then tried to commit suicide but was saved by Prakash Sen and Vikram Sen
and then, eventually, after a lapse of about 10 days, the complaint in question was handed over
to the SP, Sirohi. Subsequently, she herself appeared before the Chief Judicial Magistrate,
Sirohi on 9.4.1997, and moved an application before him stating that, although she had lodged
an FIR under Section 376/342 IPC, the police was not investigating the case in a correct manner
and, therefore, she wished to make her statement under Section 164 Cr.P.C.
C. The Chief Judicial Magistrate, Sirohi, entertained the said application and disposed it of on
the same day, i.e. 9.4.1997 by directing the Judicial Magistrate, Sheoganj, to record her
statement under Section 164 Cr.P.C.
D. In pursuance thereof, the prosecutrix appeared before the Judicial Magistrate, Sheoganj,
which is at a far distance from Sirohi, on 9.4.1997 itself and handed over all the requisite papers
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to the Magistrate. After examining the order passed by the Chief Judicial Magiastrate, Sirohi,
the Judicial Magistrate, Sheoganj, directed the public prosecutor to produce the Case Diary of
the case at 4.00 P.M. on the same day.
E. As the public prosecutor could not produce the Case Diary at 4.00 P.M, the Judicial
Magistrate, Sheoganj, directed the Public prosecutor to produce the Case Diary on 10.4.1997
at 10.00 A.M. The Case Diary was then produced before the said court on 10.4.1997 by the
Public prosecutor. The Statement of the prosecutrix under Section 164 Cr.P.C., was recorded
after being identified by the lawyer, to the effect that the said FIR lodged by her was false; in
addition to which, the statement made by her under Section 161 Cr.P.C., before the Deputy
Superintendent of Police was also false; and finally that no offence whatsoever was ever
committed by the appellant, so far as the prosecutrix was concerned.
F. After the conclusion of the investigation, charge sheet was filed against the appellant. On
25.3.1998, the Judicial Magistrate, Sheoganj, taking note of the statement given by the
prosecrutix under Section 164 Cr.P.C., passed an order of not taking cognizance of the offences
under Sections 376 and 342 IPC and not only acquitted the appellant but also passed strictures
against the investigating agency.
G. Aggrieved, the public prosecutor filed a revision before the Learned Sessions Judge, Sirohi,
wherein, the aforesaid order dated 25.3.1998 was reversed by order dated 25.7.1998 on two
grounds, firstly, that a case under Sections 376 and 342 IPC was triable by the Sessions Court
and the Magistrate, therefore, had no jurisdiction to discharge/acquit the appellant on any
ground whatsoever, as he was bound to commit the case to the Sessions Court, which was the
only competent court to deal with the issue. Secondly, the alleged statement of the prosecutrix
under Section 164 Cr.P.C. was not worth reliance as she had not been produced before the
Magistrate by the police.
H. Being aggrieved by the aforesaid order of the Sessions Court dated 25.7.1998, the appellant
moved the High Court and the High Court vide its impugned judgment and order, affirmed the
order of the Sessions Court on both counts.
Hence, this appeal.
3. Ms. Aishwarya Bhati, learned counsel appearing on behalf of the appellant, has
submitted that in view of the statement of the prosecutrix as recorded under Section 164 Cr.P.C.,
the Judicial Magistrate, Sheoganj, has rightly refused to take cognizance of the offence and has
acquitted the appellant stating that no fault can be found with the said order, and therefore it is
stated that both, the Revisional Court, as well as the High Court committed a serious error in
reversing the same.
4. On the contrary, Shri Ajay Veer Singh Jain, learned counsel appearing for the State,
has opposed the appeal, contending that the Magistrate ought not to have refused to take
cognizance of the said offences and has committed a grave error in acquitting the appellant,
after taking note of the statement of the prosecutrix which was recorded under Section 164
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Cr.P.C. The said statement was recorded in great haste. It is further submitted that, as the
prosecutrix had appeared before the Magistrate independently, without any assistance of the
police, her statement recorded under Section 164 Cr.P.C. is not worth acceptance. Thus, no
interference is called for. The appeal is liable to be dismissed.
5. We have considered the rival submissions made by the learned counsel for the parties
and perused the records.
A three Judge bench of this Court in Jogendra Nahak &Ors. v. State of Orissa &Ors., AIR
1999 SC 2565, held that Sub-Section 5 of Section 164, deals with the statement of a person,
other than the statement of an accused i.e. a confession. Such a statement can be recorded, only
and only when, the person making such statement is produced before the Magistrate by the
police. This Court held that, in case such a course of action, wherein such person is allowed to
appear before the Magistrate of his own volition, is made permissible, and the doors of court
are opened to them to come as they please, and if the Magistrate starts recording all their
statements, then too many persons sponsored by culprits might throng before the portals of
the Magistrate courts, for the purpose of creating record in advance to aid the said
culprits. Such statements would be very helpful to the accused to get bail and discharge orders.
6. The said judgment was distinguished by this Court in Mahabir Singh v. State of
Haryana, AIR 2001 SC 2503, on facts, but the Court expressed its anguish at the fact that the
statement of a person in the said case was recorded under Section 164 Cr.P.C. by the Magistrate,
without knowing him personally or without any attempt of identification of the said person, by
any other person.
7. In view of the above, it is evident that this case is squarely covered by the aforesaid
judgment of the three Judge bench in Jogendra Nahak &Ors. (Supra), which held that a person
should be produced before a Magistrate, by the police for recording his statement under Section
164 Cr.P.C. The Chief Judicial Magistrate, Sirohi, who entertained the application and further
directed the Judicial Magistrate, Sheoganj, to record the statement of the prosecutrix, was not
known to the prosecutrix in the case and the latter also recorded her statement, without any
attempt at identification, by any court officer/lawyer/police or anybody else.
8. In Sanjay Gandhi v. Union of India, AIR 1978 SC 514, this court while dealing
with the competence of the Magistrate to discharge an accused, in a case like the instant one at
hand, held:
It is not open to the committal Court to launch on a process of satisfying itself that a
prima facie case has been made out on the merits. The jurisdiction once vested
in him under the earlier Code but has been eliminated now under the present
Code. Therefore, to hold that he can go into the merits even for a prima facie
satisfaction is to frustrate the Parliament’s purpose in re-moulding Section 207-
A (old Code) into its present non-discretionary shape. Expedition was intended
by this change and this will be defeated successfully if interpretatively we hold
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that a dress rehearsal of a trial before the Magistrate is in order. In our view,
the narrow inspection hole through which the committing Magistrate has to
look at the case limits him merely to ascertain whether the case, as disclosed
by the police report, appears to the Magistrate to show an offence triable solely
by the Court of Session. Assuming the facts to be correct as stated in the police
report, the Magistrate has simply to commit for trial before the Court of
Session. If, by error, a wrong section of the Penal Code is quoted, he may look
into that aspect.
If made-up facts unsupported by any material are reported by the police and a sessions
offence is made to appear, it is perfectly open to the Sessions Court under
Section 227 CrPC to discharge the accused. This provision takes care of the
alleged grievance of the accused.
9. Thus, it is evident from the aforesaid judgment that when an offence is cognizable
by the Sessions court, the Magistrate cannot probe into the matter and discharge the accused. It
is not permissible for him to do so, even after considering the evidence on record, as he has no
jurisdiction to probe or look into the matter at all. His concern should be to see what provisions
of the Penal statute have been mentioned and in case an offence triable by the Sessions Court
has been mentioned, he must commit the case to the Sessions Court and do nothing else.
10. Thus, we are of the considered opinion that the Magistrate had no business to
discharge the appellant. In fact, Section 207-A in the old Cr.P.C., empowered the Magistrate to
exercise such a power. However, in the Cr.P.C. 1973, there is no provision analogous to the
said Section 207-A. He was bound under law, to commit the case to the Sessions Court, where
such application for discharge would be considered. The order of discharge is therefore, a
nullity, being without jurisdiction.
11. More so, it was not permissible for the Judicial Magistrate, Sheoganj, to take into
consideration the evidence in defence produced by the appellant as it has consistently been held
by this Court that at the time of framing the charge, the only documents which are required to
be considered are the documents submitted by the investigating agency along with the chargesheet. Any document which the accused want to rely upon cannot be read as evidence. If such
evidence is to be considered, there would be a mini trial at the stage of framing of charge. That
would defeat the object of the Code. The provision about hearing the submissions of the accused
as postulated by Section 227 means hearing the submissions of the accused on the record of the
case as filed by the prosecution and documents submitted therewith and nothing more. Even if,
in a rare case it is permissible to consider the defence evidence, if such material convincingly
establishes that the whole prosecution version is totally absurd, preposterous or concocted, the
instant case does not fall in that category. (Vide: State of Orissa v.DebendraNathPadhi, AIR
2003 SC 1512; State of Orissa v. DebendraNathPadhi, AIR 2005 SC 359; S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla&Anr., AIR 2005 SC 3512; Bharat Parikh v. C.B.I.
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&Anr., (2008) 10 SCC 109; and RukminiNarvekarv. VijayaSatardekar&Ors., AIR 2009 SC
1013)
12. The court should not pass an order of acquittal by resorting to a course of not taking
cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the
duty of the court to safeguard the right and interests of the victim, who does not participate in
discharge proceedings. At the stage of application of Section 227, the court has to shift the
evidence in order to find out whether or not there is sufficient ground for proceeding against
the accused. Thus, appreciation of evidence at this stage, is not permissible. (P. Vijayan v. State
of Kerala &Anr., AIR 2010 SC 663; and R.S. Mishra v. State of Orissa &Ors., AIR 2011 SC
1103).
13. The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C.,
mandate the Magistrate to commit the case to the Court of Sessions, when the charge-sheet is
filed. A conjoint reading of these provisions makes it crystal clear that the committal of a case
exclusively triable by the Court of Sessions, in a case instituted by the police is mandatory.
The scheme of the Code simply provides that the Magistrate can determine, whether the facts
stated in the report make out an offence triable exclusively, by the Court of Sessions. Once he
reaches the conclusion that the facts alleged in the report, make out an offence triable
exclusively by the Court of Sessions, he must commit the case to the Sessions Court.
14. The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to
take cognizance if the material on record warrants so. The Magistrate must, in such a case, be
satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161
and 164 Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate performs a
judicial function. However, he cannot appreciate the evidence on record and reach a conclusion
as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of
evidence is impermissible. The Magistrate is not competent to weigh the evidence and the
balance of probability in the case.
15. We find no force in the submission advanced by the learned counsel for the
appellant that the Judicial Magistrate, Sheoganj, has proceeded strictly in accordance with law
laid down by this Court in various judgments wherein it has categorically been held that a
Magistrate has a power to drop the proceedings even in the cases exclusively triable by the
Sessions Court when the charge-sheet is filed by the police. She has placed very heavy reliance
upon the judgment of this Court in Minu Kumari &Anr. v. State of Bihar &Ors., AIR 2006
SC 1937 wherein this Court placed reliance upon its earlier judgment in Bhagwant Singh v.
Commissioner of Police &Anr., AIR 1985 SC 1285 and held that where the Magistrate decides
not to take cognizance and to drop the proceeding or takes a view that there is no sufficient
ground for proceeding against some of the persons mentioned in the FIR, notice to informant
and grant of being heard in the matter, becomes mandatory.
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In the case at hand, admittedly, the Magistrate has not given any notice to the complainant
before dropping the proceedings and, thus, acted in violation of the mandatory requirement of
law.
16. The application filed before the Chief Judicial Magistrate, Sirohi, has been signed
by the prosecutrix, as well as by her counsel. However, there has been no identification of the
prosecutrix, either by the said advocate or by anyone else. The Chief Judicial Magistrate, Sirohi,
proceeded to deal with the application without identification of the prosecutrix and has no
where mentioned that he knew the prosecutrix personally. The Judicial Magistrate, Sheoganj,
recorded the statement of the prosecutrix after she was identified by the lawyer. There is nothing
on record to show that she had appeared before the Chief Judicial Magistrate, Sirohi or before
the Judicial Magistrate, Sheoganj, along with her parents or any other person related to her. In
such circumstances, the statement so recorded, loses its significance and legal sanctity.
17. The record of the case reveals that the Chief Judicial Magistrate, Sirohi, passed an
order on 9.4.1994. The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a place
far away from Sirohi, on the same date with papers/order etc. and the said Judicial Magistrate
directed the public prosecutor to produce the Case Diary on the same date at 4.00 P.M. The
case Diary could not be produced on the said day. Thus, direction was issued to produce the
same in the morning of the next day. The statement was recorded on 10.4.1997. The factsituation reveals that the court proceeded with utmost haste and any action taken so hurridly,
can be labelled as arbitrary.
18. The original record reveals that the prosecutrix had lodged the FIR herself and the
same bears her signature. She was medically examined the next day, and the medical report
also bears her signature. We have compared the aforementioned signatures with the signatures
appearing upon the application filed before the Chief Judicial Magistrate, Sirohi, for recording
her statement under Section 164 Cr.P.C., as also with, the signature on the statement alleged to
have been made by her under Section 164 Cr.P.C., and after examining the same, prima facie
we are of the view that they have not been made by the same person, as the two sets of signatures
do not tally, rather there is an apparent dissimilarity between them.
19. Evidence of identity of handwriting has been dealt with by three Sections of the
Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act i.e. Sections 45, 47 and
73. Section 73 of the said Act provides for a comparison made by the Court with a writing
sample given in its presence, or admitted, or proved to be the writing of the concerned person.
(Vide: Ram Chandra &Anr. v. State of Uttar Pradesh, AIR 1957 SC 381; Ishwari Prasad
Misrav. Mohammad Isa, AIR 1963 SC 1728; Shashi Kumar Banerjee &Ors. v. Subodh
Kumar Banerjee, AIR 1964 SC 529; Fakhruddinv. The State of Madhya Pradesh, AIR 1967
SC 1326; and State of Maharashtra v. Sukhdeo Singh &Anr., AIR 1992 SC 2100).
20. In Murari Lal v. State of Madhya Pradesh, AIR 1981 SC 363, this Court, while
dealing with the said issue, held that, in case there is no expert opinion to assist the court in
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respect of handwriting available, the court should seek guidance from some authoritative textbook and the courts own experience and knowledge, however even in the absence of the same,
it should discharge its duty with or without expert, with or without any other evidence.
21. In A. Neelalohithadasan Nadarv. George Mascrene &Ors., 1994 Supp. (2) SCC
619, this Court considered a case involving an election dispute regarding whether certain voters
had voted more than once. The comparison of their signatures on the counter foil of the electoral
rolls with their admitted signatures was in issue. This Court held that in election matters when
there is a need of expeditious disposal of the case, the Court takes upon itself the task of
comparing signatures, and thus it may not be necessary to send the said signatures for
comparison to a handwriting expert. While taking such a decision, reliance was placed by the
Court, on its earlier judgments in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14;
and Ram Pyarelal Shrivastava v. State of Bihar, AIR 1980 SC 1523.
22. In O. Bharathanv. K. Sudhakaran&Anr., AIR 1996 SC 1140, this Court
considered a similar issue and held that the facts of a case will be relevant to decide where the
Court will exercise its power for comparing the signatures and where it will refer the matter to
an expert. The observations of the Court are as follows:
The learned Judge in our view was not right……taking upon himself the
hazardous task of adjudicating upon the genuineness and authenticity of the
signatures in question even without the assistance of a skilled and trained
person whose services could have been easily availed of. Annulling the verdict
of popular will is as much a serious matter of grave concern to the society as
enforcement of laws pertaining to criminal offences, if not more. Though it is
the province of the expert to act as Judge or jury after a scientific comparison
of the disputed signatures with admitted signatures, the caution administered
by the Court is to the course to be adopted in such situations could not have
been ignored unmindful of the serious repercussions arising out of the decision
to the ultimately rendered.(See also: Lalit Popli v. Canara Bank &Ors., AIR
2003 SC 1795; Jagjit Singh v. State of Haryana &Ors., (2006) 11 SCC 1;
Thiruvengada Pilla iv.Navaneethammal, AIR 2008 SC 1541; and G.
Someshwar Rao v. Samineni Nageshwar Rao &Anr., (2009) 14 SCC 677).
23. The opinion of a handwriting expert is fallible/liable to error like that of any other
witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court
from comparing signatures or handwriting, by using its own eyes to compare the disputed
writing with the admitted writing and then from applying its own observation to prove the said
handwritings to be the same or different, as the case may be, but in doing so, the Court cannot
itself become an expert in this regard and must refrain from playing the role of an expert, for
the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the
Court takes such a task upon itself, and findings are recorded solely on the basis of comparison
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of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion
formed by the Court may not be conclusive and is susceptible to error, especially when the
exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter
of prudence and caution should hesitate or be slow to base its findings solely upon the
comparison made by it. However, where there is an opinion whether of an expert, or of any
witness, the Court may then apply its own observation by comparing the signatures, or
handwritings for providing a decisive weight or influence to its decision.
24. The aforesaid discussion leads to the following inferences:
I. In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded the statement of
the prosecutrix, wherein she narrated the facts alleging rape against the appellant.
II. The prosecutrix, appeared before the Chief Judicial Magistrate, Sirohi, on 9.4.1997 and
lodged a complaint, stating that the police was not investigating the case properly. She filed an
application that her statement be recorded under Section 164 Cr.P.C.
III. The prosecutrix had signed the said application. It was also signed by her lawyer. However,
she was not identified by any one.
IV. There is nothing on record to show with whom she had appeared before the Court.
V. From the signatures on the FIR and Medical Report, it appears that she is not an educated
person and can hardly form her own signatures.
VI. Thus, it leads to suspicion regarding how an 18 year old, who is an illiterate rustic villager,
reached the court and how she knew that her statement could be recorded by the Magistrate.
VII. More so, she appeared before the Chief Judicial Magistrate, Sirohi, and not before the area
Magistrate at Sheoganj. VIII. The Chief Judicial Magistrate on the same day disposed of the
application, directing the Judicial Magistrate, Sheoganj, to record her statement.
IX. The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a far distance from
Sirohi, where she originally went, on 9.4.1997 itself, and her statement under Section 164
Cr.P.C. was recorded on 10.4.1997 as on 9.4.1997, since the public prosecutor could not
produce the Case Diary. X. Signature of the prosecutrix on the papers before the Chief Judicial
Magistrate, Sirohi and Judicial Magistrate, Sheoganj, do not tally with the signatures on the
FIR and Medical Report. There is apparent dissimilarity between the same, which creates
suspicion.
XI. After completing the investigation, charge-sheet was filed before the Judicial Magistrate,
Sheoganj, on 20.3.1998. XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998,
refused to take cognizance of the offences on the basis of the statement of the prosecutrix,
recorded under Section 164 Cr.P.C. The said court erred in not taking cognizance on this count
as the said statement could not be relied upon.
XIII. The revisional court as well as the High Court have rightly held that the statement under
Section 164 Cr.P.C. had not been recorded correctly. The said courts have rightly set aside the
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order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not taking the cognizance of the
offence.
XIV. There is no provision analogous to Section 207-A of the old Cr.P.C. The Judicial
Magistrate, Sheoganj, should have committed the case to the Sessions court as the said
application could be entertained only by the Sessions Court. More so, it was not permissible for
the court to examine the weight of defence evidence at that stage. Thus, the order is insignificant
and inconsequential being without jurisdiction.
25. In view of the above, we do not find any force in the appeal. It is, accordingly,
dismissed. The judgment and order of the revisional court, as well as of the High Court is
upheld. The original record reveals that in pursuance of the High Court’s order, the case has
been committed by the Judicial Magistrate, Sheoganj, to the Court of Sessions on 23.4.2012.
The Sessions Court is requested to proceed strictly in accordance with law, expeditiously and
take the case to its logical conclusion without any further delay. We make it clear that none of
the observations made herein will adversely affect either of the parties, as the same have been
made only to decide the present case.
