IMPORTANT POINTS
1. Committal of case exclusively triable by the Court of Sessions in a case instituted on a police report is mandate of law.
2. section does not empower a Magistrate to record statement of a witness on his request even though not asked by the investigating agency.

JUDGMENT

Sandecp Mehta, J.— The present revision petition has been filed by the petitioner challenging the order dated 25.7.1998 passed by the Sessions Judge, Sirohi in Criminal Revision Petition No. 5/1998, whereby he has set aside the order dated 25.3.1998 passed by the Judicial Magistrate, Sirohi in FIR No. 43/1997 of the Police Station, Sheoganj registered for the offences under Sections 342 and 376 IPC, whereby the learned Magistrate refused to commit the accused/petitioner for trial in a Sessions Case.

2. Assailing the impugned order passed by the Revisional Court learned counsel for the petitioner submits that in this case the FIR was filed by the prosecutrix Mst. ‘P’ with the Superintendent of Police, Sirohi regarding the allegation of petitioner having committed forcible rape upon her. Thereafter during the course of investigation, the said prosecutrix herself made an application to the learned Magistrate, Sheoganj for recording her statement under Section 164 Cr.P.C. and thereafter the statement of the prosecutrix was recorded under Section 164 Cr. P.C. on her application. Learned counsel submits that in this statement, the prosecutrix exonerated the accused/petitioner but the investigating agency, whilst leaving out the said statement from the charge-sheet, proceeded to file the charge-sheet against the accused- petitioner, whereupon the fact of the said statement having been recorded was brought to the knowledge of the concerned Magistrate, who took the statement of the prosecutrix on record and thereafter refused to take cognizance against the accused/petitioner and discharged him from the offences under Sections 376 and 342 IPC. Learned counsel submits that the police has made a foul-play in the matter by concealing the statement of the prosecutrix recorded under Section 164 Cr.P.C. and. thus. the learned Magistrate has rightly called for the said statement and then took the same on record. Learned counsel submits that the irrefutable conclusion, as per the statement of the prosecutrix recorded under Section 164 Cr.P.C. was that the accused petitioner has been falsely implicated in this case and, thus, he submits that the revisional Court had committed grave error in setting aside the well-reasoned order of the learned Magistrate. He, thus, argues that the impugned order of the revisional Court be set aside and the order of the learned Magistrate may be restored. Learned counsel for the petitioner has relied on a decision of the Hon’ble Supreme Court in State of U.P. v. Lakshmi Brahman &Anr.1 in support of his arguments.

3. Per contra, learned Public Prosecutor has opposed the prayer made by the learned counsel for the petitioner.

4. I have given my thoughtful consideration to the rival arguments advanced at the bar, perused the impugned order as well as the record of the case.

5. In the opinion of this Court, the impugned order of the revisional Court, whereby he has reversed the order of the learned Magistrate is absolutely just and proper. In the Scheme of Code of Criminal Procedure, 1973, the learned Magistrate has no jurisdiction or power to refrain from committing the case to the Court of Sessions when the charge-sheet is filed, the procedure, which a Magistrate has to follow on the charge-sheet for a Sessions triable case, is laid down in Sections 207 and 209 Cr.P.C., which read as under:

“Section 207— Supply to the accused a copy of police report and other documents— In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost it a copy of the following:

(i) the police report;

(ii) the first information report recorded under Section 154;

(iii) the statements recorded under sub-section (3) of Section 161 of all person whom the prosecution proposes to examine as is witnesses, excluding therefrom any part in regard to which a request for the exclusion has been made by the police officer under sub-section (6) of Section 1