CHARAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J. Heard learned counsel for the applicant and the learned A. G. A.

(2.) THE arguments advanced by the learned counsel for the applicant before me is that the learned Sessions Judge was not entitled to decide the revision of the opposite party arising out of the rejection of his objection application by the learned Magistrate. THE objections were preferred against the summoning order. THE ac cused-applicant was summoned under Section 354, I. P. C. and Section 504 along with Section 376, I. P. C. That objection was not considered by the learned Magistrate and a date was fixed for commitment of the case to the Court of Session. THE objection raised before the learned Magistrate was that he may be discharged under Section 376, I. P. C. on the ground that prima facie, no offence is disclosed under that section. This plea was supported by the fact that the allegation of commission of rape upon the prosecution was made on 1-10-1997 in an application made to the S. S. P. , which was forwarded to the Investigating Officer, who, after converting the case to one under Section 376, I. P. C. , submitted a charge-sheet under that Section. Prior to this ap plication, an F. I. R. was also lodged by the prosecutrix herself at the police station on 29-9-1997 with regard to an incident that had taken place on 28-9-1997. In that F. I. R. the only allegation made by her against the opposite party was that he had molested her by striking at her breast and also made an attempt to drag her in the sugar- cane field. Her cries attracted her father-in-law to the scene of incident. THE accused thereafter took to his heels riding a bye-cycle from the spot.

(3.) ONE of the arguments further raised by the learned counsel for the ap plicant is that the objections before the learned Magistrate in a case triable by the Court of Sessions are not maintainable and no revision against that order lies. So far as this argument is concerned, no doubt that the learned Magistrate was not entitled to discharge the accused person, as claimed by him in his objections under Section 376, LP. C but so far as the learned Sessions Judge is concerned, in a revision he can do so. The objection of the learned counsel for the ap plicant that it can be done only under Section 227, Cr. P. C is sound and sustained. So far as the maintainability of the revision is con cerned, it is maintainable. When the remedy for discharge is available specifically under Section 227, Cr. P. C, the learned Sessions Judge in exercise of his revisional power should not have looked into these facts and circumstances at this stage knowing fully well that there is a provision for discharge in the Code of Criminal Procedure for the cases triable before the Court of Sessions. That stage has not yet arrived. The order of the Magistrate was correct because he was precluded from exercising this power in the present. He has no option but to sum mon an accused if a challan is received in a case triable by a Court of Sessions. The scope of enquiry is extremely restricted. The consideration of the facts, as made by the learned Sessions Judge, were imper missible at the stage at which it has been done by him. He should have either postponed the hearing of the revision till the date the case was committed to the Court of Sessions and then transfer that revision to the Court concerned to which the trial was allotted which should have heard the revision and decided the objection raised therein in accordance with the provisions of Section 227, Cr. P. C. treating the revision as an objection to framing of charge. In the circumstances this exercise of power no-doubt is premature by the learned Addl. Sessions Judge. In a case to be decided by a Court of Sessions the Magistrate do not have the powers to decide the objections by enter ing into merit of that case.