SANTU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant misc. petition is directed against the order dated 6.10.2005 passed by learned Judicial Magistrate 1 st Class, Nokha, whereby the learned Judicial Magistrate has, instead of proceeding against the respondents for the offence under Section 376 IPC and without providing any opportunity of hearing to the petitioner complainant on the partial chargesheet filed by the Police has released the respondents No.2 and 3 on probation for the offences under Sections 447, 341 and 323/34 IPC.

(2.) Succinctly stated the facts of the case are that the petitioner complainant filed an FIR at Police Station Panchu on 29.10.2004 with the allegations that the respondents No.2 and 3 herein, forcibly entered into her Dhani and assaulted her as well as her brother-in-law and that respondent Daul Nath committed rape upon her.

(3.) During the course of the investigation, the petitioner in her statements recorded under Section 161 Cr.P.C. as well Section 164 Cr.P.C. repeated the allegations levelled by her in the FIR and alleged that she had been subjected to forcible rape by Daul Nath. The Police, forreasons best known to itself did not file a charge-sheet for the offence under Section 376 IPC and instead filed a report under Section 173 Cr.P.C. for the offences under Sections 447, 341 and 323/34 IPC only. On the very first day on which the result of investigation was filed, the accused appeared in the Court and pleaded guilty on which the Magistrate without applying its mind to the report submitted by the Police in realtion to the non-commission of the offence under Section 376 IPC proceeded to convict the accused for the offences under Sections 447, 341 and 323/34 IPC on the basis of their pleading guilty and released them on probation. Now the complainant has approached this Court by way of the instant misc. petition seeking a direction that the order dated 6.1.2005 passed by the learned Judicial Magistrate, whereby the learned Judicial Magistrate has released the accused on probation for the minor offences without providing any opportunity of hearing to the petitioner in relation to the major offence under Section 376 IPC.