STATE OF ASSAM Vs. HIT RAM DEKA

JUDGEMENT

(1.) This Criminal Revision has been initiated suo motu by this Court on perusal of the records of G.R. Case No. 3559 of 1986 and the order dt. 3-6-1988 passed in the case by the Judicial Magistrate Shri G.K. Sangmai, Gauhati.

(2.) Initially case No. 486 was registered at Dispur Police Station on 28-10-1986 under Ss.366/312/313, I.P.C. on the basis of the First Information Report lodged by Srimati Sabita Bala Das. Shri Hit Ram Deka was the named accused. Thereupon, the C.R. case No. 3559 of 1986 had been registered on the Court of Chief Judicial Magistrate, Gauhati. On completion of investigation, charge-sheet had been submitted against the accused to face the trial for commission of offences under Ss.376/312/313 of the Penal Code. Relevant documents with copy of the police report had been furnished to the accused as required under the law. The case came to the file of Shri C.K. Santmai, Judicial Magistrate, First Class, Gauhati.

(3.) The Magistrate took up the case on 3-6-1988 and passed the order after hearing counsel of both sides and considering all facts and materials on record. It is revealed from the order that the Assistant Public Prosecutor had submitted that the case should be committed to the Court of Session directly as the investigating agency submitted charge-sheet for offence under Ss.376/312, I.P.C. against the accused and the offences were exclusively triable by the Court of Session. Whereas, the counsel for the defence had submitted that the Magistrate should not commit the case to the Court of Session as there was no material particulars in the record referring to some decisions including one reported in AIR 1958 SC 57 (as disclosed in the order); that there was no element an record for charging the accused under S.376, IPC because the victim girl was above 19 years of age and had sexual intercourse with consent; that the accused also could not be charged under S.493, IPC for absence of deceitful act on the part of the accused to believe the victim girl that she was lawfully married to him and both did never live together for some period as husband and wife; that the accused had sexual intercourse with the girl occasionally availing the chances and that too with her consent; and that the accused could not be found to have committed offences under S.312 as miscarriage was done by Medical Surgeon who was exempted from this offence as per provision of law. On hearing these submissions of the counsel the Magistrate gave concluding decision in his order dt. 3-6-1988 as follows :-