The main legal point established in the judgment is the interpretation of the provisions of Section 202(2) of the Code of Criminal Procedure, 1973 and the determination of the mandatory or discretionary nature of the proviso to this section.

1. This is an application for under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 28.3.2003 passed by Shri A.K. Sinha, Judicial Magistrate, Ist Class, Katihar in C.A. No. 335 of 2001 by which the learned Magistrate after finding that a prima facie case against the petitioner under Section 376 of the Indian Penal Code was made out ordered for issue of the process against him.

2. From the prosecution case it appears that the allegation against the petitioner is that he caught hold of opposite party No. 2, Anokha Khatoon, in her field on 10.3.2001 at about 3.30 p.m. and committed rape on her. Opposite party No. 2 raised alarm on which several persons including her mother, sister and brother reached there. A panchayati was held in the matter and a fine of Rs. 5051/- was imposed on the petitioner. The punches however, kept delaying the matter and, therefore, a complaint petition was filed as late as on 17.3.2001 before the learned Chief Judicial Magistrate, Katihar who made over the complaint petition to Shri S.P. Pandey, Judicial Magistrate, Ist Class for enquiry or disposal. The complainant- opposite party No. 2 was examined on oath. Some of the witnesses named in the complaint petition were also examined.

Thereafter a petition was filed in the Court by opposite party No. 2 to the effect that witness Nos. 4 to 6 named in the complaint petition are not willing to depose in the case and hence the other witnesses named therein may be examined. But order dated 17.7.2002 the learned Magistrate directed opposite party No. 2 to bring witnesses on the next date. Thereafter the father and uncle of opposite party No. 2 were examined. The learned Magistrate on the consideration of the complaint petition and the evidence of the witnesses found that a prima facie case under Section 376 of the Indian Penal Code was made out and he directed the complainant-opposite party No. 2 to file requisites and the list of the witnesses within 15 days. The case was adjourned to 16.4.2003. However, before this, on 3.4.2003, the list of the witnesses was filed and summons to them were issued.

3. The petitioner has contended in this petition that the entire prosecution case is false. The elder brother of the petitioner had filed an information petition on 15.5.2001 against opposite party No. 2, her father, mother and other relatives in which he apprehended the false implication of his family members in a false case. The family members of opposite party No. 2 were putting undue pressure on the elder brother of the petitioner to marry the petitioner with opposite party No. 2. It was alleged that opposite party No. 2 had illicit relationship with the petitioner and she had become pregnant. On medical examination no pregnancy was found. In the meantime, the petitioner was married on 14.3.2001. The falsity of the complaint case would become clear from the fact that three witnesses named in the complaint petition were not willing to be examined on behalf of the opposite party No. 2 and they have swearn affidavits to that effect. The learned Magistrate, however, without taking into consideration these facts issued process against the petitioner. No case under Section 376 of the Indian Penal Code, as alleged in the statement of opposite party No. 2 was made in solemn affirmation. The prosecution evidence will not stand the test of the trial and, therefore, the process issued against the petitioner to face the trial is bad and unjustified. On these grounds it has been contended that the case may be admitted and the record of the case may be called for and after hearing the impugned order may be quashed.

4. I have heard the parties in detail at the admission stage itself. At the out set it may be stated that various grounds have been taken in this petition disclosing the evidence to be adduced by the petitioner in course of the trial. On behalf of opposite party No. 2 it has been submitted that a