ORDER K.N. Ojha, J.
1. Instant revision has been preferred against order dated 30-10-1984 passed by learned VI Additional Sessions Judge, Muzaffar Nagar, in Criminal Revision No. 80 of 1983, Smt. Shanti v. Charan Singh, by which the learned Sessions Judge had set aside the order dated 27-5-1983 passed by Vth Munsif Magistrate, Court No. 5, Muzaffar Nagar, in Criminal case No. 283/9 of 1983, Smt. Shanti v. Charan Singh, by which the learned Magistrate discharged the revisionist from charge under Section 376, I.P.C. police station Shahpur, District Muzaffar Nagar, after making inquiry under Sections 200 and 202, Cr.P.C. The order was passed by the learned Magistrate under Section 203, Cr.P.C. Aggrieved therefrom the prosecutrix Smt. Shanti Devi preferred the above mentioned revision, which was allowed by the learned Sessions Judge on the ground that the Judicial Magistrate is not empowered to discharge an accused in a Sessions trial case.
2. Heard Sri Siddhartha, learned counsel for the revisionist, Sri Jeevan Srivastava, holding brief of Smt. Poonam Srivastav learned counsel for the opposite party No. 1 and Shri R. R. K. Misra, learned AGA.
3. The fact of the case is that Smt. Shanti wife of Brahm Singh, resident of village Kutabi, police station Shahpur, district Muzaffar Nagar lodged FIR against the revisionist, Charan Singh under Section 376, I.P.C. at police station Shahpur, district Muzaffar Nagar, on 5-12-1982 at 16.10 hrs. that when she was going to her field to provide meal to her servant at 1.00 p.m. in village Kutabi the revisionist met her on the way and with help of one more person overpowered her and forcibly committed rape on her. On her alarm Jai Prakash, Jaipal and Onkar ran to the spot but the accused was successful in making his escape good. Smt. Shanti devi, aged about 49 years was medically examined on 5-2-1982 and it was opined by the doctor that no injury on her external or private part of the body was found. She lacks chastity, but there were signs of having sexual relation within 24 hours. Investigation was made by the police of police station Shahpur, district Muzaffar Nagar. The Investigating Officer after collecting evidence arrived at the conclusion that the revisionist was a Tehsil employee. On 5-12-1982 at about 1.00 p.m. he was at a distant place in a village Bhaisar Hedi, police station Chappar, district Muzaffar Nagar as he had to make auction sale in two cases and it was not possible for him to come to his village Kutabi and commit rape on Smt. Shanti Devi. Thereafter, the police submitted its final report. Before the final report was submitted Smt. Shanti Devi filed a complaint. On the complaint the Magistrate recorded statements of the complainant and her witnesses under Sections 200 and 202, Cr.P.C. The learned Magistrate appreciated the evidence recorded under Sections 200 and 202, Cr.P.C. and arrived at the conclusion that the parties are residents of the same place and the possibility of false implication cannot be ruled out.
4. According to her own version the complainant was aged about 49 years but when she was medically examined on the next date, the doctor opined that she was more than 19 years of age. No injury on the her external or private part of the body was found and it cannot be held with certainty that rape was committed on her. Even if there was any symptom of having sexual relation within 24 hours when she was a married lady, it cannot be held that it was only the revisionist, who committed rape on her Besides it, when three persons surrounded the revisionist and still the revisionist was successful in making his escape good. This does not appear natural. Considering these circumstances the learned Magistrate passed the order under Section 203, Cr.P.C. discharging the revisionist from the charge under Section 376, I.P.C.
5. Aggrieved there from the opposite party Smt. Shanti Devi filed a revision in which the learned Additional Sessions Judge held that a Magistrate is not empowered to discharge an accused, who has to face trial in a case under Sessions triable sections. The case under Section 376, I.P.C. is Sessions triable case; therefore, the Magistrate was not empowered to discharge the accused from the charge under Section 376, I.P.C. With the observation the order passed by the learned Magistrate was set aside and the learned Magistrate was directed to proceed in accordance with law.
6. In instant case when FIR was lodged, the matter was investigated and final report was submitted, which was accepted by the Magistrate. Thereafter, the prosecutrix filed a complaint and examined herself and her witnesses under Sections 200 and 202 Cr.P.C. Thus it is the procedure of complaint case as provided under Chapter XV of Cr.P.C. which will be applicable to the facts of this case. Section 202(2) of Cr.P.C, contemplates that:
"In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided 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 all his witnesses and examine them on oath."
Section 203, Cr.P.C, contemplates that:
"203. Dismissal of complaint:-- If, after considering the statements on oath (if any) of the complainant and of the witness and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
7. Thereafter, procedure has been contemplated in criminal proceedings about issuance of process, examining witnesses, furnishing copies of papers and to commit the case to the Sessions or to proceed with the case to frame charge and to proceed in case of warrant triable case. A perusal of Chapter XV of the Criminal Procedure Code shows that an inquiry can be made by a Magistrate not only in complaint case but in Sessions triable cases also. Under Section 203, Cr.P.C. if after considering evidence and statements on oath of the complainant and his/her witnesses and in result of inquiry and investigation under Sections 200 and 202, Cr.P.C. the Magistrate is of the opinion that there is no sufficient ground for proceeding with case, he may dismiss the complaint. Thus complaint includes both cases whether it is warrant triable case or Sessions triable case, Thus if the learned Magistrate arrived at the conclusion that the complaint in a Sessions triable case cannot be believed and it is not proper to summon the accused, the Magistrate is empowered to dismiss the Complaint. Therefore, to say that the Magistrate had no Jurisdiction to dismiss the complaint filed by Smt Shanti Devi under Section 376, I.P.C. is contrary to the provisions of Section 203, Cr.P.C.
8. Learned Munsif Magistrate appreciated the circumstances of the case. The rape is said to have been on a lady aged about 49 years while the medical examination of a lady, who was aged about 19 years, was done. There were contradictions in the statements of the witnesses and some unnatural circumstances were found in the case. The parties were of the same village and possibility of false implication cannot be ruled out. If in these circumstances the learned Magistrate after discussing the evidence adduced during inquiry and other circumstances of the case arrived at the conclusion that it was not fruitful to summon the accused and commit the case to the Court of Session, dismissed the complaint, the order passed by the Magistrate was in accordance with law.
9. Thus the order passed by the learned Magistrate is in accordance with Section 203, Cr.P.C. and it does not suffer from any illegality, material irregularity or Jurisdictional error. It is the order of the learned Additional Sessions Judge, which is contrary to the provisions of Section 203, Cr.P.C. Section 203, Cr.P.C. confers power on the Magistrate to dismiss the complaint in respect of which he had made inquiry under Sections 200 and 202, Cr.P.C. Under Sections 200 and 202, Cr.P.C. inquiry can be made in both types of cases i.e. in warrant triable cases and Sessions triable cases. Thus the Magistrate is empowered to dismiss the complaint if he thinks in the circumstances of the case that it is not proper in the interest of Justice to commit the case to the Court of Session.
10. In view of above discussions the order passed by the learned VI Additional Sessions Judge, Muzaffar Nagar, on 30-10-1984 is not in accordance with law and it deserves to be set aside.
11. The revision is allowed and impugned order dated 30-10-1984 passed by the VI Additional Sessions Judge, Muzaffar Nagar is set aside and the order dated 27-5-1983 passed by the V Munsif Magistrate, Muzaffar Nagar is confirmed.