Ram Nandan Prasad, J.

1. The prayer in this application is to quash the order dated 25.3.1985, passed by the Judicial Magistrate, Sitamarhi in Nanpur P.S. case No. 60 of 1984, whereby the learned Magistrate has taken cognizance of the offence under Section 376, IPC against the petitioner and directed that the case should be committed to the Court of Session.

2. The submission on behalf of the petitioner is that even on the allegations as contained in the petition of complaint no case under Sec. 376, I.P.C. is made out. Opposite-party No. 2 Khaitun Nisha filed a petition of complaint in the court of Sub-Divisional Judicial Magistrate, Sitamarhi, which was forwarded by the court to Nanpur Police Station for instituting a case and investigationg the same. On its basis Nanpur P.S. case No. 60 of 1984 was instituted at the P. Section on 27.9.1984. The allegation in the complaint petition is that complainant Kahitoon Nisha was living in village Bokhra in the house adjacent to the house of the petitioner Mir Wali Mohammad alias Kalu and being a neighbour she used to frequently visit his house and he used to treat her as sali by village relationship. It is stated that the petitioners wife used to remain ill. It is further alleged in the petition of complaint that about six months back when the complainant was grinding pulses in the house of the petitioner and was alone there the petitioner came and started joking with her and told her that she should live with him because his wife used to remain ill all the time and also used to quarrel with him and that he would ultimately marry her and keep her. It is said that at first the complainant did not succumb to the allurements and demands of the petitioner but when he held out assurance to the effect that he would marry her, she agreed. Under these circumstances the petitioner had sexual intercourse with the complainant several times and every time the petitioner used to hold out assurance that he would marry her. After about three months, the complainant discovered that she had become pregnant and when she disclosed this to the petitioner and again requested him to marry her he merely held out assurance but did not carry out his promise and this ultimately led the complainant to believe that the petitioner had been holding out false promises and had duped her in having sexual intercourse with him. It is stated that the petitioner even had accepted that the complainant had become pregnant through him but still did not act in accordance with the assurance. The complainant then informed her parents who were at Calcutta and they came from there and got Panchyat held on 30.7.1984 and the petitioner in presence of the Panchayat accepted that he had promised to marry the complainant about six months back and he had indulged in seswith her due to which the latter had conceived and even at that time gave false assurance that he would marry the complainant. The petitioner, however, did not keep even the assurance given by him before the Panchayat. When her parents requested him to marry her, the petitioner and the other accused persons abused the complainant and her parents and assaulted them with lists and slaps and chased and drove them inside their own house.

3. The charge-sheet was submitted in the case under Sec. 376, I.P.C. and by the impugned order the learned Magistrate took cognizance in the case and ordered that steps be taken to commit the accused to the Court of Session for trial for an offence under Sec. 376, I.P.C.

4. The contention on behalf of the petitioner is that even on the facts alleged in the petition of complaint (later on treated as written report for instituting the police case) no case under Sec. 376, I.P.C. is made out. In this connection attention has been drawn to the report of the Medical Board which had examined the complainant on 22.1.1985 (Annexure-2). The Boards report is that the age of the girl on the date of examination i.e. on 22.1.1985 is about 18 year