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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1496 of 2012

Ajay Kumar Parmar                   …Appellant

Versus

State of Rajasthan                                                         …Respondent                      

J U D G M E N T      

Dr. B.S.CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 9.1.2012 passed by the High Court of Judicature for  

Rajasthan at Jodhpur in S.B. Criminal Revision Petition No. 458 of  

1998, by way of which, the High Court has upheld the judgment and  

order  dated  25.7.1998,  passed  by  the  Sessions  Judge  in  Revision  

Petition No. 5 of 1998. By way of the said revisional order, the court  

had reversed the order of discharge of the appellant for the offences  

under  Sections  376  and  342  of  the  Indian  Penal  Code,  1860

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(hereinafter referred to as the ‘IPC’) dated 25.3.1998, passed by the  

Judicial Magistrate, Sheoganj.  

2. The facts and circumstances giving rise to this appeal are as  

follows:   

A. An FIR was lodged by one Pushpa on 22.3.1997, against the  

appellant  stating that  the  appellant  had raped her  on 10.3.1997.  In  

view thereof, an investigation ensued and the appellant was medically  

examined.  The  prosecutrix’s  clothes  were  then  also  recovered  and  

were sent  for  the  preparation of  FSL report.   The prosecutrix  was  

medically  examined  on  22.3.1997,  wherein  it  was  opined  by  the  

doctor that she was habitual to sexual intercourse, however, a final  

opinion regarding fresh intercourse would be given only after receipt  

of report from the Chemical Examiner.   

B. The statement of  the prosecutrix was recorded under Section  

161 of Code of Criminal Procedure, 1973, (hereinafter referred to as  

`the Cr.P.C.’), by the Dy.S.P.,  wherein she narrated the incident as  

mentioned in the FIR, stating that she had been employed as a servant  

at the residence of one sister Durgi for the past six years. Close to the  

residence of sister Durgi, Dr. D.R. Parmar and his son Ajay Parmar  

were  also  residing.  On  the  day  of  the  said  incident,  Ajay  Parmar  

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called  Pushpa, the prosecutrix home on the pretext that there was a  

telephone  call  for  her.  When  she  reached  the  residence  of  Ajay  

Parmar, she was raped by him and was restrained from going out for a  

long period of time and kept indoors without provision of any food or  

water. However, the next evening, she was pushed out surreptitiously  

from the back exit of the said house. She then tried to commit suicide  

but was saved by Prakash Sen and Vikram Sen and then, eventually,  

after a lapse of about 10 days, the complaint in question was handed  

over to the SP, Sirohi.  Subsequently, she herself appeared before the  

Chief  Judicial  Magistrate,  Sirohi  on  9.4.1997,  and  moved  an  

application before him stating that, although she had lodged an FIR  

under Section 376/342 IPC, the police was not investigating the case  

in a correct manner and, therefore,  she wished to make her statement  

under Section 164 Cr.P.C.  

C. The  Chief  Judicial  Magistrate,  Sirohi,   entertained  the  said  

application   and  disposed  it  of  on  the  same  day,  i.e.  9.4.1997  by  

directing the Judicial  Magistrate,  Sheoganj,  to record her statement  

under Section 164 Cr.P.C.  

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D. In  pursuance  thereof,  the  prosecutrix  appeared  before  the  

Judicial Magistrate, Sheoganj, which is at a far distance from Sirohi,  

on  9.4.1997  itself  and  handed  over  all  the  requisite  papers  to  the  

Magistrate.  After examining the order passed by the Chief Judicial  

Magiastrate,  Sirohi,  the  Judicial  Magistrate,  Sheoganj,  directed  the  

public prosecutor to produce the Case Diary of the case at 4.00 P.M.  

on the same day.  

E. As the public prosecutor could not produce the Case Diary at  

4.00  P.M,  the  Judicial  Magistrate,  Sheoganj,  directed  the  Public  

prosecutor to produce the Case Diary on 10.4.1997 at 10.00 A.M. The  

Case Diary was then produced before the said court on 10.4.1997 by  

the   Public  prosecutor.   The  Statement  of  the  prosecutrix  under  

Section  164  Cr.P.C.,  was  recorded  after  being  identified  by  the  

lawyer,  to the effect  that the said FIR lodged by her was false;  in  

addition  to  which,  the  statement  made  by  her  under  Section  161  

Cr.P.C., before the Deputy Superintendent of  Police was also false;  

and finally that  no offence whatsoever  was ever committed by the  

appellant, so far as the prosecutrix was concerned.

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F. After the conclusion of the investigation, charge sheet was filed  

against  the  appellant.   On  25.3.1998,  the  Judicial  Magistrate,  

Sheoganj,  taking note of the statement given by the prosecrutix under  

Section 164 Cr.P.C., passed an order of not taking cognizance of the  

offences under Sections 376 and  342 IPC and not only acquitted the  

appellant but also passed strictures against the   investigating agency.  

G. Aggrieved,  the  public  prosecutor  filed  a  revision  before  the  

Learned Sessions  Judge,  Sirohi,  wherein,  the  aforesaid  order  dated  

25.3.1998 was reversed by order  dated 25.7.1998 on two grounds,  

firstly,  that a case under Sections 376 and 342 IPC was triable by the  

Sessions Court and the Magistrate, therefore, had no jurisdiction to  

discharge/acquit the appellant on any ground whatsoever, as he was  

bound to commit the case to the Sessions Court,  which was the  only  

competent  court  to  deal  with  the  issue.   Secondly,  the  alleged  

statement of the prosecutrix under Section 164 Cr.P.C. was not worth  

reliance as she had not been produced before the Magistrate by the  

police.   

H. Being aggrieved by the aforesaid order of the Sessions Court  

dated 25.7.1998, the appellant moved the High Court and the High  

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Court vide its impugned judgment and order, affirmed the order of the  

Sessions Court on both counts.    

Hence, this appeal.  

3. Ms. Aishwarya Bhati, learned counsel appearing on behalf of  

the  appellant,  has  submitted  that  in  view  of  the  statement  of  the  

prosecutrix  as  recorded  under  Section  164  Cr.P.C.,  the  Judicial  

Magistrate,  Sheoganj,  has rightly refused to take cognizance of the  

offence and has  acquitted the appellant stating that no fault can be  

found with  the said order, and therefore it is stated that both,  the  

Revisional Court, as well as the High Court committed a serious error  

in reversing the same.   

4. On the contrary,  Shri  Ajay Veer Singh Jain,  learned counsel  

appearing for the State, has opposed the appeal, contending that the  

Magistrate ought not to have refused to take cognizance of the said  

offences and has committed a grave error in acquitting the appellant,  

after  taking  note  of  the  statement  of  the  prosecutrix  which  was  

recorded under Section 164 Cr.P.C.  The said statement was recorded  

in  great  haste.  It  is  further  submitted  that,  as  the  prosecutrix  had  

appeared before the Magistrate independently, without any assistance  

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of the police, her statement recorded under Section 164 Cr.P.C. is not  

worth acceptance. Thus, no interference is called for. The appeal is  

liable to be dismissed.  

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  

A three Judge bench of this  Court in Jogendra Nahak & Ors.  

v. State of Orissa & Ors., AIR 1999 SC 2565, held that Sub-Section  

5 of Section 164, deals with the statement of a person, other than the  

statement of an accused i.e. a confession.  Such a statement can be  

recorded, only and only when, the person making such statement is  

produced before the Magistrate by the police. This Court held that, in  

case such a course of action, wherein such person is allowed to appear  

before the Magistrate of his own volition, is made permissible,  and  

the doors of court are opened to them to come as they please, and if  

the Magistrate starts recording all  their statements,  then    too many  

persons sponsored by culprits might throng before the portals of the  

Magistrate courts, for the purpose of creating record in advance to aid  

the  said   culprits.   Such  statements  would  be  very  helpful  to  the  

accused to get  bail and discharge orders.  

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6. The said judgment was distinguished by this Court in Mahabir  

Singh v.  State of  Haryana, AIR 2001 SC 2503, on facts,  but  the  

Court expressed its anguish at the fact that the statement of a person in  

the  said  case  was  recorded  under  Section  164  Cr.P.C.  by  the  

Magistrate, without knowing him personally or without any attempt of  

identification of the said person, by any other person.   

7. In view of the above,  it  is  evident that  this  case is  squarely  

covered  by  the  aforesaid  judgment  of  the  three  Judge  bench  in  

Jogendra Nahak & Ors. (Supra), which held that a person should be  

produced  before  a  Magistrate,  by  the  police  for  recording  his  

statement under Section 164 Cr.P.C. The Chief Judicial Magistrate,  

Sirohi,  who  entertained  the  application  and  further  directed  the  

Judicial  Magistrate,  Sheoganj,  to  record  the  statement  of  the  

prosecutrix, was not known to the prosecutrix in the case and the latter  

also recorded her statement, without any attempt at identification, by  

any court officer/lawyer/police or anybody else.  

8. In Sanjay Gandhi v. Union of India,  AIR 1978 SC 514, this  

court  while   dealing  with  the  competence  of  the  Magistrate  to  

discharge an accused, in a case like the instant one at hand, held :   

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“….it is not open to the committal Court to launch   on a process of satisfying itself that a prima facie   case  has  been  made  out  on  the  merits.  The  jurisdiction once vested in him under the earlier   Code  but  has  been  eliminated  now  under  the   present Code. Therefore,  to hold that he can go   into the merits even for a prima facie satisfaction   is  to  frustrate  the  Parliament's  purpose  in  re- moulding Section 207-A (old Code) into its present   non-discretionary shape. Expedition was intended  by  this  change  and  this  will  be  defeated   successfully if interpretatively we hold that a dress   rehearsal  of  a  trial  before  the  Magistrate  is  in   order.  In  our  view,  the  narrow  inspection  hole   through which the committing Magistrate  has to   look  at  the  case  limits  him  merely  to  ascertain   whether the case, as disclosed by the police report,   appears  to  the  Magistrate  to  show  an  offence   triable  solely by the Court  of  Session.  Assuming   the  facts  to  be  correct  as  stated  in  the  police   report,  …..the Magistrate  has simply to commit   for trial before the Court of Session. If, by error,   a wrong section of the Penal Code is quoted, he   may  look  into  that  aspect.  If  made-up  facts   unsupported by any material are reported by the   police and a sessions offence is made to appear, it   is  perfectly  open  to  the  Sessions  Court  under   Section 227 CrPC to discharge the accused. This   provision  takes  care  of  the alleged grievance  of   the accused.”

                                                                    (Emphasis added)

9. Thus, it is evident from the aforesaid judgment that when an  

offence  is  cognizable  by the Sessions  court,  the  Magistrate  cannot  

probe into the matter and discharge the accused. It is not permissible  

for him to do so, even after considering the evidence on record, as he  

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has no jurisdiction to probe or look into the matter at all. His concern  

should  be  to  see  what  provisions  of  the  Penal  statute  have  been  

mentioned and in case an offence triable by the Sessions Court has  

been mentioned, he must commit the case to the Sessions Court and  

do nothing else.   

  10. Thus, we are of the considered opinion that the Magistrate had  

no business to discharge the appellant.   In fact, Section 207-A in the  

old  Cr.P.C.,  empowered  the  Magistrate  to  exercise  such  a  power.  

However, in the Cr.P.C. 1973, there is no provision analogous to the  

said Section 207-A. He was bound under law, to commit the case to  

the Sessions  Court,  where such application for  discharge would be  

considered.  The  order  of  discharge  is  therefore,  a  nullity,  being  

without jurisdiction.  

11. More  so,  it  was  not  permissible  for  the  Judicial  Magistrate,  

Sheoganj, to take into consideration the evidence in defence produced  

by the appellant as it has consistently been held by this Court that at  

the time of framing the charge, the only documents which are required  

to  be  considered are  the documents  submitted by the investigating  

agency  alongwith  the  charge-sheet.    Any  document  which  the  

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accused  want  to  rely  upon  cannot  be  read  as  evidence.   If  such  

evidence is to be considered, there would be a mini trial at the stage of  

framing of  charge.  That  would defeat  the object  of  the  Code.  The  

provision about hearing the submissions of the accused as postulated  

by Section 227 means hearing  the  submissions of the accused on the  

record  of  the  case  as  filed  by  the  prosecution  and  documents  

submitted therewith and nothing more. Even if,  in a rare case it  is  

permissible  to  consider  the  defence  evidence,  if  such  material  

convincingly establishes that the whole prosecution version is totally  

absurd, preposterous or concocted, the instant case does not fall in that  

category. (Vide: State of Orissa v. Debendra Nath Padhi, AIR 2003  

SC 1512;  State of Orissa v. Debendra Nath Padhi, AIR 2005 SC  

359;  S.M.S. Pharmaceuticals  Ltd. v.  Neeta Bhalla & Anr.,  AIR  

2005 SC 3512;  Bharat Parikh v. C.B.I. & Anr., (2008)  10 SCC  

109;  and  Rukmini  Narvekar v.  Vijaya Satardekar & Ors., AIR  

2009 SC 1013)

12. The court should not pass an order of acquittal by resorting to a  

course of  not taking cognizance, where prima facie case is made out  

by the Investigating Agency.  More so, it is the duty of the court to  

safeguard  the  right  and  interests  of  the  victim,  who  does  not  

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participate  in  discharge proceedings.  At  the stage of  application of  

Section 227, the court has to shift the evidence in order to find out  

whether or not there is sufficient ground for proceeding against the  

accused.  Thus,  appreciation  of  evidence  at  this  stage,  is  not  

permissible. (Vide:  P. Vijayan v. State of Kerala & Anr., AIR 2010  

SC 663; and R.S. Mishra v. State of Orissa & Ors., AIR 2011 SC  

1103).

13. The scheme of the Code, particularly, the provisions of Sections  

207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the  

Court of Sessions,  when the charge-sheet is filed.  A conjoint reading  

of these provisions make it crystal clear that the committal of a case  

exclusively triable by the Court of Sessions, in a case instituted by the  

police is mandatory.   

The scheme of the Code simply provides that the Magistrate  

can  determine,  whether  the  facts  stated  in  the  report  make out  an  

offence triable exclusively, by the Court of Sessions.  Once he reaches  

the conclusion that the facts alleged in the report, make out an offence  

triable exclusively by the Court of Sessions, he must commit the case  

to the Sessions Court.  

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14. The  Magistrate,  in  exercise  of  its  power  under  Section  190  

Cr.P.C.,  can  refuse  to  take  cognizance  if  the  material  on  record  

warrants so.  The Magistrate must, in such a case, be satisfied that the  

complaint,  case  diary,  statements  of  the  witnesses  recorded  under  

Sections 161 and 164 Cr.P.C., if any, do not make out any offence.  At  

this stage, the Magistrate performs a judicial function.  However, he  

cannot appreciate the evidence on record and reach a conclusion as to  

which evidence is acceptable, or can be relied upon.  Thus, at this  

stage appreciation of evidence is impermissible. The Magistrate is not  

competent to weigh the evidence and the balance of probability in the  

case.   

15. We find no force in the submission advanced by the learned  

counsel for the appellant that the Judicial Magistrate, Sheoganj, has  

proceeded strictly in accordance with law laid down by this Court in  

various  judgments  wherein  it  has  categorically  been  held  that  a  

Magistrate  has  a  power  to  drop the  proceedings  even in  the  cases  

exclusively  triable  by the Sessions  Court  when the  charge-sheet  is  

filed by the police.   She  has  placed very heavy reliance  upon the  

judgment of this Court in Minu Kumari & Anr. v. State of Bihar &  

Ors., AIR 2006 SC 1937 wherein this Court placed reliance upon its  

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earlier judgment in  Bhagwant Singh v. Commissioner of Police &  

Anr., AIR 1985 SC 1285 and held that where the Magistrate decides  

not to take cognizance and to drop the proceeding or takes a view that  

there  is  no  sufficient  ground  for  proceeding  against  some  of  the  

persons mentioned in the FIR, notice to informant and grant of being  

heard in the matter, becomes mandatory.   

In the case at hand, admittedly, the Magistrate has not given  

any notice to the complainant before dropping the proceedings and,  

thus, acted in violation of the mandatory requirement of law.  

16. The  application  filed  before  the  Chief  Judicial  Magistrate,  

Sirohi, has been signed by the prosecutrix, as well as by her counsel.  

However, there has been no identification of the prosecutrix, either by  

the said advocate or by anyone else. The Chief Judicial Magistrate,  

Sirohi, proceeded to deal with the application without identification of  

the  prosecutrix  and  has  no  where  mentioned  that  he  knew  the  

prosecutrix personally.  The Judicial Magistrate, Sheoganj, recorded  

the statement of the prosecutrix after she was identified by the lawyer.  

There is nothing on record to show that she had appeared before the  

Chief  Judicial  Magistrate,  Sirohi  or  before  the  Judicial  Magistrate,  

Sheoganj, alongwith her parents or any other person related to her. In  

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such circumstances, the statement so recorded, loses its significance  

and legal sanctity.  

17. The  record  of  the  case  reveals  that  the  Chief  Judicial  

Magistrate,  Sirohi,  passed  an  order  on  9.4.1994.   The  prosecutrix  

appeared before the Judicial Magistrate, Sheoganj, at a place far away  

from Sirohi,  on  the  same date  with  papers/order  etc.  and  the  said  

Judicial Magistrate directed the public prosecutor to produce the Case  

Diary on the same date at 4.00 P.M.  The case Diary could not be  

produced on the said day.  Thus, direction was issued to produce the  

same in the morning of the next day.  The statement was recorded on  

10.4.1997.  The fact-situation reveals that the court proceeded with  

utmost  haste  and  any  action  taken  so  hurridly,  can  be  labelled  as  

arbitrary.  

18. The original record reveals that the prosecutrix had lodged the  

FIR herself and the same bears her signature.   She was medically  

examined  the  next  day,  and  the  medical  report  also  bears  her  

signature.  We have compared the aforementioned  signatures with the  

signatures  appearing  upon  the  application  filed  before  the  Chief  

Judicial Magistrate, Sirohi, for recording her statement under Section  

164 Cr.P.C.,  as also with, the signature on the statement alleged to  

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have  been  made  by  her  under  Section  164  Cr.P.C.,   and  after  

examining the same, prima facie we are of the view that they have not  

been made by the same person,  as the two sets of signatures do not  

tally, rather there is an apparent dissimilarity between them.  

19. Evidence  of  identity  of  handwriting  has  been  dealt  with  by  

three Sections of the Indian Evidence Act, 1872 (hereinafter referred  

to as the ‘Evidence Act’) i.e. Sections 45, 47 and 73. Section 73 of the  

said Act provides for a comparison made by the Court with a writing  

sample given in its presence, or admitted, or proved to be the writing  

of the concerned person. (Vide:  Ram Chandra & Anr. v. State of  

Uttar  Pradesh,  AIR  1957  SC  381;  Ishwari  Prasad  Misra  v.  

Mohammad Isa,  AIR 1963 SC 1728;  Shashi Kumar Banerjee &  

Ors. v. Subodh Kumar Banerjee, AIR 1964 SC 529;  Fakhruddin  

v. The State of Madhya Pradesh, AIR 1967 SC 1326; and State of  

Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100).  

20.   In  Murari Lal v. State of Madhya Pradesh,  AIR 1981 SC  

363, this Court, while dealing  with the said issue, held that, in case  

there is no expert opinion to assist the court in respect of handwriting  

available,  the  court  should  seek  guidance  from some  authoritative  

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text-book and  the  courts  own experience  and knowledge,  however  

even in the absence of the same, it should discharge its duty with or  

without expert, with or without any other evidence.  

21. In A. Neelalohithadasan Nadar v. George Mascrene & Ors.,  

1994 Supp. (2) SCC 619, this Court considered a case involving an  

election dispute regarding whether certain voters had voted more than  

once. The comparison of their signatures on the counter foil of the  

electoral rolls with their admitted signatures was in issue. This Court  

held  that  in  election  matters  when  there  is  a  need  of  expeditious  

disposal of the case, the Court takes upon itself the task of comparing  

signatures,  and  thus  it  may  not  be  necessary  to  send  the  said  

signatures for comparison to a handwriting expert. While taking such  

a decision, reliance was placed by the Court, on its earlier judgments  

in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14; and  

Ram Pyarelal Shrivastava v. State of Bihar, AIR 1980 SC 1523.

22. In  O. Bharathan v. K. Sudhakaran & Anr.,  AIR 1996 SC  

1140, this Court considered a similar issue and held that the facts of a  

case will be relevant to decide where the Court will exercise its power  

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for comparing the signatures and where it will refer the matter to an  

expert. The observations of the Court are as follows:

“The  learned  Judge  in  our  view  was  not   right......taking upon himself  the hazardous   task  of  adjudicating  upon the  genuineness   and  authenticity  of  the  signatures  in   question  even  without  the  assistance  of  a   skilled  and  trained  person  whose  services   could have been easily availed of. Annulling   the  verdict  of  popular  will  is  as  much  a   serious  matter  of  grave  concern  to  the   society as enforcement of laws pertaining to   criminal offences, if not more. Though it is   the province of the expert to act as Judge or   jury  after  a  scientific  comparison  of  the   disputed  signatures  with  admitted   signatures, the caution administered by the   Court is to the course to be adopted in such   situations  could  not  have  been  ignored   unmindful  of  the  serious  repercussions   arising out of the decision to the ultimately   rendered.”

(See also: Lalit Popli v. Canara Bank & Ors., AIR 2003 SC 1795;  

Jagjit  Singh  v.  State  of  Haryana  &  Ors.,  (2006)  11  SCC  1;  

Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541; and  

G. Someshwar Rao v. Samineni Nageshwar Rao & Anr., (2009) 14  

SCC 677).   

23. The opinion of a handwriting expert is fallible/liable to error  

like that of any other witness, and yet, it cannot be brushed aside as  

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useless. There is no legal bar to prevent the Court from comparing  

signatures  or  handwriting,  by   using  its  own eyes  to  compare  the  

disputed writing with the admitted writing and then from applying its  

own observation  to  prove the said  handwritings to  be the same or  

different, as the case may be, but in doing so, the Court cannot itself  

become an expert in this regard and must refrain from playing the role  

of an expert, for the simple reason that the opinion of the Court may  

also not be conclusive. Therefore, when the Court takes such a task  

upon  itself,  and  findings  are  recorded  solely  on  the  basis  of  

comparison  of  signatures  or  handwritings,  the  Court  must  keep  in  

mind the risk involved, as the opinion formed by the Court may not be  

conclusive and is susceptible to error, especially when the exercise is  

conducted  by  one,  not  conversant  with  the  subject.  The  Court,  

therefore, as a matter of prudence and caution should hesitate or be  

slow to  base  its  findings  solely  upon  the  comparison  made  by  it.  

However, where there is an opinion whether of an expert, or of any  

witness, the Court may then apply its own observation by comparing  

the  signatures,  or  handwritings  for  providing  a  decisive  weight  or  

influence to its decision.

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24. The aforesaid discussion leads to the following inferences:

I. In  respect  of  an  incident  of  rape,  an  FIR  was  lodged.  The  

Dy.S.P. recorded the statement of the prosecutrix,  wherein she  

narrated the facts alleging rape against the appellant.

II. The prosecutrix, appeared before the Chief Judicial Magistrate,  

Sirohi,  on  9.4.1997 and  lodged  a  complaint,  stating  that  the  

police  was  not  investigating  the  case  properly.  She  filed  an  

application that  her  statement be recorded under Section 164  

Cr.P.C.   

III. The prosecutrix had signed the said application.   It  was also  

signed by her lawyer.  However, she was not identified by any  

one.  

IV. There  is  nothing  on  record  to  show  with  whom  she  had  

appeared before the Court.  

V. From the signatures on the FIR and Medical Report, it appears  

that she is not an educated person and can hardly form her own  

signatures.  

VI. Thus, it leads to suspicion regarding how an 18 year old, who is  

an illiterate rustic villager, reached the court and how she knew  

that her statement could be recorded by the Magistrate.  

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VII. More  so,  she  appeared  before  the  Chief  Judicial  Magistrate,  

Sirohi, and not before the area Magistrate at Sheoganj.   

VIII. The Chief Judicial Magistrate on the same day disposed of the  

application,  directing  the  Judicial  Magistrate,  Sheoganj,  to  

record her statement.  

IX. The  prosecutrix   appeared  before  the  Judicial  Magistrate,  

Sheoganj,  at  a far  distance from Sirohi,  where she originally  

went, on 9.4.1997 itself, and her statement under Section 164  

Cr.P.C. was recorded on 10.4.1997 as on 9.4.1997, since the  

public prosecutor could not produce the Case Diary.  

X. Signature  of  the  prosecutrix  on  the  papers  before  the  Chief  

Judicial Magistrate, Sirohi  and Judicial Magistrate, Sheoganj,  

do not tally with the signatures on the FIR and Medical Report.  

There is apparent dissimilarity between the same, which creates  

suspicion.   

XI. After  completing  the  investigation,  charge-sheet  was  filed  

before the Judicial Magistrate, Sheoganj, on 20.3.1998.   

XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998,  

refused to take cognizance of the offences on the basis of the  

statement  of  the  prosecutrix,  recorded  under  Section  164  

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Cr.P.C.   The said court erred in not taking cognizance on this  

count as the said statement could not be relied upon.

XIII.  The revisional  court as well  as the High Court  have rightly  

held that the statement under Section 164 Cr.P.C. had not been  

recorded correctly.  The said courts have rightly set aside the  

order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not  

taking the cognizance of the offence.    

XIV. There is no provision analogous to Section 207-A of the old  

Cr.P.C.  The  Judicial  Magistrate,  Sheoganj,  should  have  

committed the case to the Sessions court as the said application  

could be entertained only by the Sessions Court.  More so, it  

was  not  permissible  for  the  court  to  examine  the  weight  of  

defence evidence at that stage. Thus, the order is insignificant  

and inconsequential being without jurisdiction.  

25. In view of the above, we do not find any force in the appeal. It  

is, accordingly, dismissed. The judgment and order of the revisional  

court,  as  well  as  of  the High Court  is  upheld.  The original  record  

reveals that in pursuance of the High Court’s order, the case has been  

committed  by  the  Judicial  Magistrate,  Sheoganj,  to  the  Court  of  

Sessions on 23.4.2012.   The Sessions Court is requested to  proceed  

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strictly in accordance with law, expeditiously and take the case to its  

logical conclusion without any further delay. We make it clear that  

none of the observations made herein will adversely affect either of  

the parties, as the same have been made only to decide the present  

case.   

……..………………………J.  (Dr. B.S. CHAUHAN)

     ………………………………….......................……J.

              (FAKKIR MOHAMED IBRAHIM KALIFULLA)                                         

New Delhi,  September 27,  2012

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