Bibi Gulshan vs The State of Bihar and Others

Abhijit Sinha, J.—The prosecutrix/complainant of Complaint Case No. 705/2003 has preferred this application for quashing of order dated 12.7.2006 passed by Sri Sitaram Pandey, Sessions Judge, Madhepura, in Cr. Revision No. 167 of 2005 whereby the revision against the order dated 21.9.2005 passed by Sri J.P. Kisku, Judicial Magistrate 1st Class, Madhepura, taking cognizance of offences under Sections 323, 354, 379 and 504 of the Indian Penal Code, preferred by the petitioner herein has been dismissed. In addition a prayer has also been made for issuance of direction to the trial court to take cognizance also for the offence u/s 376 I.P.C. against the six accused persons named in the complaint and impleaded as opposite party Nos. 2 to 7 herein. The primary grievance of the petitioner is that notwithstanding a specific and clear case of the commission of rape having been made out from the statement of the prosecutrix on S.A. and the deposition of her witnesses at the enquiry u/s 202 Cr.P.C. yet the learned Magistrate had curiously failed to take cognizance also of the offence u/s 376 I.P.C. and the learned Sessions Judge had erred in rejecting the revision wherein the prosecutrix had sought for direction to follow to the trial court for addition of Section 376 I.P.C. amongst the offences whereof cognizance had been taken.

Admittedly, one of the objects behind the provisions of Section 202 Cr.P.C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. However, there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused but also with a view to bring to book a person or persons against whom grave allegations are made. But it must be remembered that an enquiry u/s 202 Cr.P.C. can in no sense be characterised as a trial for the simple reason that it is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case as is done at a trial. That apart there are a catena of decisions of the Apex Court that under the inherent jurisdiction the High Court cannot embark upon an enquiry as to whether the evidence in question is reliable or not or undertake a reappraisal of the evidence. Reference in this connection may be made to the discussion in R.P. Kapur Vs. The State of Punjab, , Madan Lal Vs. State of Punjab, , Bakhshish Singh Brar Vs. Gurmej Kaur and Another, , Municipal Corporation of Delhi Vs. Purshotam Dass Jhunjunwala and Others, and State of U.P. Vs. R.K. Srivastava and Another, .

The learned Sessions Judge in the impugned order dated 12.7.2006 has rightly observed that the petitioner has remedy for redressal of her grievance at the time of hearing on charge matter and if she succeeds to show the commission of the offence of rape, the learned Magistrate has power to commit the case when it appears that a prima facie case triable exclusively by the Court of Sessions is made out. In the result I find no merit in this application which is accordingly dismissed.