BIRANCHI GOUR Vs. SUBHAGI DEI

JUDGEMENT

(1.) THIS is an application in revision against the order dated 4.9.1967 passed by the learned Sessions Judge of Bolangir -Kalahandi purporting to exercise jurisdiction under Section 437, Code of Criminal Procedure.

(2.) THE facts of the case may be shortly stated. One Subhagi Dei (opposite party) was stated to have been carrying. On 29 -5 -1964, according to the prosecution case, the Plaintiff assaulted her by giving kicks and fist blows on her abdomen and back. On 30 -5 -1964 it is alleged that there was miscarriage. On 30 -6 -1964 a First Information Report was given wherein, however, there was no reference made to the fact of miscarriage. On 15 -8 -1964, the investigation got concluded with a final report. In the meantime, however, on 2 -7 -1904, the opposite party came with a petition of complaint alleging commission of offence under Sections 323, 504 and 448, Indian Penal Code. On the basis of the said petition of complaint, Complaint Case No. 4 of 1964 was registered in Court. In the said petition of complaint there was no allegation about miscarriage. On 21 -9 -1964, there was a petition of complaint filed in Court again on the basis of which cognizance was taken for an offence under Section 316, Indian Penal Cede. On this occasion the entire allegation was confined about the abortion. This became the subject matter of Complaint Case No. 12 of 11:16:1: (T.R. 363 of 1964). On 4 -3 -1965, the following order was passed by the learned Magistrate:

(3.) MR . Mohanty for the Plaintiff contends that the impugned order of the learned Sessions Judge is liable to be quashed on account of the fact that the first two documents relating to the incident, namely, the F.I.R. dated 3 -6 -1964 and the petition of complaint filed in Court on 2 -7 -1964 did not indicate the allegation of miscarriage. If miscarriage was true, in these two documents which were meant to initiate proceedings against the Plaintiff there could have been no omission of it. He further relied upon the fact that Section 316, Indian Penal Code would not apply to the facts of the present case. That section reads thus: