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Judgment
The petitioner has called in question the order
dated 11.09.2017 passed by the learned Principal
Sessions Judge, Udupi in Crl.RP No.87/2016.
I have heard the arguments of the learned
counsel for the petitioner and as well the learned High
Court Government Pleader for the respondent - State.
Perused the records.
Kapu Police Station of Udupi District have laid a
charge sheet against the accused petitioner, for the
offence punishable under sections 417, 493 and 506 of
IPC, after thorough investigation. The learned
Magistrate has in fact framed charges for the above said
offences and proceeded to record the evidence of the
prosecution witnesses. After recording of the evidence
of the prosecution witnesses, it appears the learned
Assistant Public Prosecutor has filed an application
u/s.323 of Cr.P.C . seeking committal of the case to the
Sessions Court, as the evidence produced before the
court makes out an offence u/s.376 of IPC, which is
exclusively triable by the Court of Sessions. The
learned Magistrate after providing opportunity to the
accused has dismissed the said application by giving
detailed reasons vide order dated 2.9.2016.
The State being aggrieved by the said order
preferred Criminal Revision Petition No.87/2016 before
the Principal District and Sessions Judge, Udupi. The
learned Sessions Judge, again, re-appreciated the
materials on record and found that there are materials
to attract Section 376 of IPC and as such, it set aside
the order passed by the jurisdictional Magistrate and
allowed the application filed u/s.323 of Cr.P.C . and
directed the trial Court to commit the case to the
Sessions Court for trial. The said order is called in
question before this court.
Section 323 of Cr.P.C. gives wide jurisdiction to
the committal Magistrate to commit the case under
peculiar circumstances of the case. Section 323 reads
as follows:
"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed - If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained."
In order to act upon Section 323 of Cr.P.C. whether
during the course of inquiry or during the course of trial,
if it appears to the Magistrate at any stage, before
signing the judgment that the offences are triable by
the Court of Sessions, then, only he shall commit it to
the Court of Sessions. Therefore, it is the prerogative of
the Magistrate to look into the materials on record and
find out whether any case is made out even during the
course of the trial which is exclusively triable by the
Court of Sessions. For any reason, on the basis of the
evidence recorded by the Magistrate, if the Magistrate
comes to the conclusion that no case is made out which
is exclusively triable by the Court of Sessions, then he
need not invoke such power. The learned Trial Judge
has appreciated the materials on record prima facie and
found that there is no material to commit the case to
the Court of Sessions.
I have meticulously perused the evidence of
PW-1 The evidence of the victim PW-1 clearly
established that the accused and herself were known to
each other since 10 to 15 years prior to the lodging of
the complaint and they were living together and that,
the accused has assured her that he would marry her
and in this context, he was touching her, impressing her
etc., Thereafter, it is specifically stated that they went
to Anegudda Ganapathi temple and the accused married
her by tying Thali to her and thereafter, it is stated that
he took her to Kundapur and there, they had sexual
intercourse. It is further stated that subsequent to this,
on various occasions, they lived together and he had
intercourse with her on several occasions and he was
also often calling her over phone etc., But
subsequently, it appears, the accused had got an
engagement with some other girl. Therefore, it
appears, she has stated that she has filed the
complaint. Having stated so in the examination in chief
in so many paragraphs, but at the end of the
examination in chief, in one sentence, she has stated
that she has not given consent for the sexual
intercourse. Even in the course of cross examination,
she has categorically admitted that the accused had
married her and thereafter, she has disclosed it to her
mother the factual aspects with regard to the marriage
of the accused with her. No where in the statement, it
is stated that on the assurance of the marriage at any
point of time that he had committed sexual intercourse
with her, without her consent.
On overall reading of the entire evidence, it
clearly goes to show that according to the victim herself
that, after the marriage, such sexual intercourse taken
between them. But these two aspects have not been
looked into by the Sessions Court. However, the
learned Magistrate has observed the same and rightly
rejected the application filed by the prosecution
u/s.323 of Cr.P.C ..
Under the above said facts and circumstances of
the case, the learned Magistrate is well within his
limitation in rejecting the said application, by exercising
his proper and judicious discretion. The learned
Sessions Judge has ignored the said order and also the
evidence available on record, but mainly on the ground
that due to the false promise given by the accused
consent was given by the victim, it is not at all the case
of the prosecution at the initial stages or at any time.
In the above said circumstances, the order of
the Sessions Court deserves to be set aside. Hence,
following:
ORDER
The Petition is allowed. Consequently, the order
passed by the Principal Sessions Judge, Udupi in Crl.
Rev. Petition No.87/2016 dated 11.9.2017 is hereby set
aside. Consequently, the order passed by the II Addl.
Civil Judge & JMFC, Udupi, in CC No.939/2011 is hereby
confirmed.