MADAN MOHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD .

(2.) ON 19.4.1997 Suresh Chand Sharma, the informant, lodged a report with the P/s. Hindaun City, regarding the commission of rape by Vrindavan, applicant No. 2 on his wife Smt. Kusumlata. Against Madan Mohan, applicant No. 1. it was alleged that when Suresh went to protest against the mis -behaviour of Vrindavan, applicant No. 2, against his wife, he was beaten by Madan Mohan and Vrindavan, applicant Nos. 1 and 2. The police registered a case for offences Under Sections 323, 451 and 376/511 IPC. After investigation the police came to the conclusion that no offence, punishable Under Section 376 r.w. Section 511 IPC was committed in the case. A police report for offence Under Sections 451 and 323 IPC was accordingly submitted before the A.C.J.M., Hindaun. It appeals that after the learned Magistrate had received the police report, he directed the police to get Smt. Kusumlata examined Under Section 164 Cr. P.C. Smt. Kusumlata was accordingly examined on 12.6.1997 Under Section 164 Cr. P.C. though the chargesheet appears to have been submitted before the court on 13.5.1997. It further appears that the applicants had been admitted to bail for offences Under Section 451/323 IPC by the police or by the learned Magistrate before recording the statement of Smt. Kusumlata Under Section 164 Cr. P.C. The applicants, apprehending their arrest in connection with the non -bailable offence of attempt to commit rape punishable Under Section 376/511 IPC, applied for anticipatory bail before the Addl. Sessions Judge, Hindaun City, who by his order dated 28.6.1997 declined to accept their prayer mainly on the ground that the offences reported by the police to have been committed in the case, were bailable and, therefore, an application Under Section 438 Cr. P.C. was not maintainable. The applicants further appear to have again applied for bail Under Section 438 Cr. P.C. on the basis of their apprehension of being arrested on the charge of commission of offence Under Section 376/511 IPC. The learned Addl. Sessions Judge again declined to pass appropriate order in favour of the applicants and dismissed their application on 2.8.1997. That is how the applicants have approached this Court for appropriate relief in the matter.

(3.) IN the instant case, it seems to me, the learned Magistrate had directed the recording of the statement of Smt. Kusum Lata to know or satisfy himself whether the accusation made against the applications fell within the purview of the offence punishable by court of Sessions. But since he had, undisputedly, already taken cognizance of offence Under Sections 323, 451 IPC on the police report submitted before him on 31.5.97 and had commenced inquiry or trial he could not have permitted or directed the investigating officer to collect evidence to the above effect by getting the witness, Smt. Kusum Lata, examined Under Section 164 Cr.P.C. That stage was already over on 31.5.1997 and was not available on 12.6.1997. The inquiry or trail had already commenced. The course open to the learned Magistrate was that as provided by Section 323 Cr. P.C. which says that if, in any inquiry into an offence or trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that court as per relevant provisions in that behalf. The learned Magistrate, in case it had appeared to him that the case was in one which ought to be tried by the Court of Sessions, must have disclosed his mind to that effect upon the parties and proceeded as per Section 323 Cr. P.C. for the commitment of the case to the court of Sessions, if the material on his record at that stage of the proceedings prima -facie disclosed the commission of the offence punishable Under Section 376/511 IPC.