Consent obtained by deception or fraud is not valid consent and amounts to rape under Section 375 IPC.

L.P.N.Shahadeo, J.

1. This application under Sec. 482 of the Code of Criminal Procedure is directed against the order dated 18-12-87 passed by the Sri B. B. Verma, Subdivisional Judicial Magistrate, Sitamarhi (West) in G. K. Case No. 11/86 (T.R.No. 994/87). It appears that a complaint case was filed before the Sub-divisional Judicial Magistrate on 5-12-87 stating therein that the complainant was alone in her house. The opposite party No. 2 came to her house and induced her to work as maid servant. The petitioner worked as maid-servant and, thereafter, on the pretext of marriage, the opposite party No. 2 committed rape on her and, thereafter, he refused to marry. Ultimately it was detected that the accused opposite party No. 2 was a married person having children. It was detected that the complainant lady was also married lady. The petition of complaint was referred to the police for investigation. The police registered a case under Sec.376 and 498 of the Indian Penal Case and ultimately submitted charge sheet against opposite party No. 2 i.e. the accused at the close of the investigation. ,

2. It appears that the learned Magistrate had taken cognizance of the offence under Sec.376 and 498 of the Indian Penal Code and, thereafter, it appears, the learned Magistrate, by the impugned order, decided to proceed for trial of the case against the opposite party No. 2 under Sec. 498 of the Penal Code and declined to commit him u/s 376 Indian Penal Code to the court of Session under Sec.209 of the Cr.P.C. This order refusing to commit the opposite party No. 2 Jafar Alam, to the Court of Sessions to face charge under Section 376 of the Penal Code is the subject of quashing in this case.

3. It was contended on behalf of the petitioner-lady, Saleha Khatoon that opposite party No. 2, under false pretext and allurement that he would marry her, committed perpetual rape on her in between 20-4.85 to 28-11-85 though he was a married person having family life and children.

4. Both the parties have argued at length with respect to the scope of Section 209 of the Code of Criminal Procedure. Learned counsel appearing on behalf of opposite party No. 2 has drawn my attention towards the necessary ingredients to constitute an offence of rape as enumerated under Sec.375 of the Penal Code,

5. It is true that the learned Magistrate is not supposed to act blindly within the scope of Sec.209 of the Cr.P.C. but he is vested with limited discretion to consider limited matters which have been well described in a judgment of the Supreme Court reported in 1978 Cr.L.J. 642 that the learned Magistrate has scope to creep through narrow hole to find out whether a prima facie case is made out for commitment or not.

6. In this case during the course of police investigation the police had also that a case under Sec.386 of the Penal Code along with a case under Section 498 of the Penal Code was made out and in consequence of that chargesheet was submitted at the close of the investigation. The chargesheet which is on the record, shows that opposite party No. 2 on giving false assurance and allurement that he would marry with the petitioner , developed sexual connection with her. The ordersheet of the learned Magistrate, after receipt of the chargesheet which he passed on 5-7-86, shows that he had perused the chargesheet, the case diary and all the materials available and, therefore, being satisfied on the materials placed before him and after applying his judicial mind, took cognizance of the offence under sections 376 and 498 of the Penal Code So, at this stage, the learned Magistrate, on application of the judicial mind, was satisfied that a case under Sec.376 of the Penal Code was made out which was exclusively triable by the court of Sessions. Therefore, on the facts and circumstances stated above, prima facie a case under Sec.376 of the Penal Code, according to the own appraisal of the evidence by the learned Magistrate, was established and it is so, the l