JUDGMENT

JASWANT SINGH, J. — This appeal by special leave is directed against an order dated the 29th September, 1975 of the Punjab and Haryana High Court at Chandigarh directing prosecution of the appellant for an offence under S. 193 of the I. P. C. and asking the Registrar of the Court to lodge a complaint in respect of the aforesaid offence in the court of competent jurisdiction.

2. The circumstances giving rise to this appeal are : On the basis of recovery of the dead body of a minor girl of fourteen or fifteen years of age named Kaushalaya Devi from the residential house of one Bhajan Lal aged 35 years, resident of Abohar (hereinafter referred to as the accused) on the night between the 14th and 15th of March, 1973 when his wife and children were away, the accused was tried for the murder of and rape on the said girl. To start with, the police did not effect the arrest of the accused who from the evidence recorded in the case appeared to be a big landlord. Later on, however, on the statement of the father of the deceased girl, a case was registered against the accused and he was taken into custody at 1.00 P. M. on the 15th March, 1973. Dr. C. D. Ohri who conducted the post-mortem examination of the dead body of Kaushalaya Devi, deceased opined on the basis of the observations made by him that the death of the deceased had occurred as a result of asphyxia due to constriction of the neck which was ante mortem and sufficient in the ordinary course of nature to cause death. The doctor further opined that the deceased had been raped and the person committing the rape on her was bound to receive some scratches on his glans penis. Accordingly at about 5.50 P. M. on the 15th of March, 1973, the police produced the accused before Dr. P. K. Mittal, Medical Officer, Nehru Municipal Hospital, Abohar, and requested him to opine as to : (1) the nature of injuries on the person of the accused, (2) the accuseds potency to perform the sexual intercourse and (3) whether the accused had performed sexual intercourse during the last 24-28 hours. As according to the Government instructions in force at the relevant time, the medico-legal cases were to be examined by two doctors, Dr. P. K. Mittal examined the accused in the presence of Dr. Mrs. L. K. Grewal, who was also attached to his hospital, and found the following injuries on his person :-

"1. Circular bruise 2.1/2 cm. in diameter present on the back of right arm 3 cm. lateral to the auxiliary fold and 14 cm. below the top of right shoulder joint, the circle being of upper lower arches with healthy central area. In each arch there are separate specks of reddish violet bruises suggestive of teeth marks.

2. 2 cm. in diameter rounded bluish red bruise which is comparatively much fainter, present laterally to bruise No. 1. It is uniform in appearance all over."

3. In the opinion of both the doctors, injury No. 1 was the result of teeth bite but as regards injury No. 2, the doctors expressed their inability to give any definite opinion. On examination of the private parts of the accused, the doctors found that he was potent and capable of performing sexual intercourse. During the course of the said examination, the doctors also observed the whole of the glans penis and corona of the accused covered with a thick layer of yellowish material which smelt like smegma. They, therefore, advised a thorough chemical and microscopic examination of the yellowish material to find out if it was a layer of smegma or not to enable them to answer the third query made by the police and vide their letter No. 426 dated the 15th March, 1973 referred the accused to the appellant who was posted as Chief Medical Officer, Ferozepur. In their aforesaid forwarding letter, the doctors stated that they had not at all disturbed the layer of smegma and had tried to take no sample so that the Chief Medical Officer "would examine the case in its original condition and order the sample of smegma to be taken and sent for chemical