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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.