RANO Vs. BHAGAT SINGH

JUDGEMENT

(1.) THIS is an application against an order of the Judicial Magistrate first class Samba dated 13 -12 -69 by which he has acquitted the accused of the charge under S. 354 of the RPC. The facts leading to the present challan may be briefly put as follows.

(2.) THE police of the Ramgarh police station submitted a Challan purporting to be one under Ss. 376/511 RPC against the accused. The challan was necessitated in view of a complaint made before the police by Mst. Rano that on 19 -10 -68 while she was looking after her ground nut crop, the accused Bhagat Singh came near her, assaulted her and tried to commit rape on her. When she raised a hue and cry, Mst. Achri and Chet Ram came and the accused fled away. It is therefore manifest that on the allegations made by the complainant the offence was one under Ss. 376/511 RPC and not merely under S. 354 of the Ranbir P. C. The challan was presented before the Magistrate on 21 -11 -68, and on the same day the Magistrate directed the accused to appear before him. On 21 -12 -68 the accused appeared and the court ordered copies of documents to be furnished to the accused. On 27 -12 -68 the Magistrate heard arguments and framed charges against the accused U/s 354 R.P.C., tried him and ultimately acquitted him.

(3.) LEARNED counsel appearing for the petitioner has submitted that the Magistrate had usurped the functions of the sessions court and therefore the order of acquittal is vitiated by a clear error of law. Counsel for the accused, however, submitted that the Magistrate took action under sub -sec. (6) of S. 207 -A Criminal P.C. and was fully justified in trying the case when he was satisfied that a case under Ss. 376/511 R.P.C. was not made out. In order to understand the respective contentions of the parties, it will be necessary to state the admitted facts. There is no doubt that the instant case proceedings were instituted on a police report so as to attract the provisions of S. 207 -A of the Criminal P. C. Secondly on the allegations made by the complainant a case under Ss. 376/511 RPC was clearly made out. In these circumstances, therefore, it was incumbent on the Magistrate to follow the procedure laid down for holding a commitment inquiry under S. 207 -A of the Criminal P. C. The Magistrate no doubt adopted the procedure under S. 207 -A to begin with, but appears to have left the procedure in the middle and proceeded to frame charge against the accused under S. 354 purporting to act under sub -section (6) of S. 207 -A. S. 207 -A sub -Ss. (1) to (6) run thus: - (1) When in any proceeding instituted on a police report, the Magistrate receives the report, forwarded under S. 173, he shall for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date. (2) If, at any time before such date, the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. (3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in S. 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished. (4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the magistrate -is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also. (5) The accused shall be at liberty to cross -examine the witnesses examined under sub -S. (4), and in such case the prosecutor may re -examine them. (6) When the evidence referred to in sub -S. (4) has been taken and the magistrate has considered all the documents referred to in S. 173 and has, if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other magistrate in which case he shall proceed accordingly.