JUDGMENT - V.P. TIPNIS, J. :---The petitioner, who is a minor girl, 9 years old, represented by her father has challenged the legality and validity of a circular dated 16th August, 1995 issued by the then District Sessions Judge, Solapur. She has also challenged the order of the learned Judicial Magistrate, First Class, Pandharpur, passed on 21st December, 1995 refusing to accept the charge-sheet filed by the police on the basis of the aforesaid circular and on the ground that the muddemal property is not submitted alongwith the charge-sheet. She has further prayed for quashing and setting aside the order passed by the learned Judicial Magistrate, First Class, Pandharpur, on 28th December, 1995 directing that the accused (respondent No. 3) be released on bail in Criminal Misc. Application No. 464 of 1995.

2. By order dated 11th March, 1996, rule was granted and was made peremptorily returnable on 27th March, 1996. The State was directed to file affidavit explaining the circumstances under which the Chemical Analyser's report and muddemal could not be sent to the Court alongwith the charge-sheet. In pursuance of the aforesaid order, affidavits by the concerned police officer as also by the Deputy Director, Forensic Science Laboratories, Mumbai, have been filed. The State of Maharashtra is represented by the learned Additional Public Prosecutor Mr. Nalawade and respondent No. 3 original accused is represented by his learned Advocate Mr. Mane. We have heard all the learned Counsel appearing for the petitioner and the respondents. We have perused all the annexures. We have also gone through several authorities cited at the Bar.

3. The petitioner, a minor girl of about 9 years of age, was raped by one Vithal Vasant Nagtilak, a young boy of about 20 years of age on 23-9-1995 at about 5.30 p.m. She was forcibly taken to a lonely place in the field by respondent No. 3 and thereafter raped. After reaching home, she narrated the incident to her father and promptly first information report was lodged at Pandharpur taluka police station on the very day at about 9.45 p.m. Case was registered under C.R. No. 170/95. On 24th September, 1995 the accused was arrested. The investigation commenced and police filed charge-sheet on 21-12-1995 before the learned Magistrate alongwith an application which is Exhibit. 'A' to this petition. In the application the Assistant Police Inspector, Pandharpur Taluka Police Station, has stated that C.R. No. 170 of 1995 has been registered for offences under sections 376, 323 and 506 on 23-9-1995. The seized muddemal has been sent to Pune for examination. However, the same has not been received back alongwith the Chemical Analyser's certificate. The accused was arrested on 24-9-1995 and he is in judicial custody. As 90 days will be getting over soon and as the investigation is completed, it is requested to accept the charge-sheet in accordance with the provisions of the Code of Criminal Procedure. The application specifically mentions that the muddemal and C.A. certificate will be obtained by sending a special constable and will be submitted alongwith the report. The endorsement of the Police Prosecutor, Pandharpur, on this application mentions that it is very important to accept the charge-sheet and if the charge-sheet is not accepted, the accused is likely to be released on bail.

4. On the aforesaid application, the learned Judicial Magistrate, First Class, passed the following order on 21-12-1995:---

"Perused the application. Heard the learned A.P.P. The property is alleged to be sent to C.A. The property is not with the charge-sheet.

There is a circular from the Hon'ble District Court/Sessions Judge which is dated 16-9-1995, not to accept the charge-sheet in sessions cases unless property is there. As such the charge-sheet cannot be accepted at the present moment. Police are aware of this circular. With above observations application disposed of."

As such, the learned Magistrate refused to accept the charge-sheet

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