Subrata Talukdar, J.

1. By filing this criminal revisional application being CRR 2848 of 2013, the petitioner, Pinki Pramanik, a transgender and an athlete, challenges the Order dated 18th June, 2013 passed by the Ld. 2nd Additional District Court, Barasat in Sessions Case no.03(02),2013 arising out of Baguihati P.S. Case no.449 of 2012 under Sections 417/376/325/506 IPC thereby dismissing the discharge petition filed by the petitioner u/s 227 read with Section 228 of the Code of Criminal Procedure (for short CrPC). By the said Order impugned dated 18th June, 2013 the ld. 2nd Additional Sessions Court was pleased to consider the application for discharge consequent to filing of charge sheet preferred by the petitioner u/s 227 CrPC. The said application was dated 2nd April, 2013.

The ld. 2nd Additional Sessions Court was pleased to record as follows:-

a) That the de facto complainant/present Opposite Party no.2 (for short OP2) lodged an FIR being Baguihati P.S. Case no.449/2012 against the present petitioner under Sections 417/376/325/493/420/506 IPC. It was submitted on behalf of the petitioner that there is no material in the Case Diary to show that the accused person has committed any offence u/s 376/493/325 of the IPC.

b) It was further argued on behalf of the petitioner that as per the medical examination report of the C.M.O.H, North 24-Parganas it is evident that the petitioner is not capable of sexual intercourse like an ordinary male. Therefore, the charge of rape was not sustainable.

c) The arguments of the petitioner were opposed by the prosecution on the ground that there was enough prima facie medical evidence on record to show that the petitioner is not a female person and therefore it would not be in the best interests of the trial to conclude at the threshold that the petitioner is not capable of committing rape. The prosecution relied on a decision of the Hon’ble Apex Court in the matter of Amit Kapoor Vs. Ramesh Chandra reported in 2013 (1) SCC (CRI) pg. 986 to argue that at the stage of considering a discharge application the competent Court is only concerned with the strong suspicion regarding commission of the offence and not a final test of guilt prior to framing of charges. The prosecution further argued the point that even two charges can be framed in the alternative when it is doubtful as to which offence was acutely made out. The prosecution emphatically opposed the discharge of the petitioner qua the offence u/s 376 IPC on the further ground that the medical report does not grant a clean chit to the petitioner. The opinion of the medical experts was strongly relied upon by the prosecution to urge dismissal of the application u/s 227 CrPC.

d) It was noticed by the Ld. Additional Sessions Court that the medical examination of the petitioner discloses that Pinki Pramanik is incapable of performing sexual intercourse like that of an adult male in the ordinary course of nature. The Ld. 2nd Additional Sessions Court also noticed the definition of the offence of rape in the Indian Penal Code which points to a man physically forcing himself upon a woman to have sexual intercourse. In the above context, in the further opinion of the Ld. 2nd Additional Sessions Court, when the Medical Board had opined that the petitioner is not a female in the ordinary sense of the term, the allegations of rape within the meaning of the IPC cannot be considered to be baseless, concocted and false at this stage of the proceeding.

e) The ld. 2nd Additional Sessions Court further held that no final opinion can be given in respect of the sex of the petitioner and, the opinion of the Medical Board in this respect although not a piece of conclusive evidence in every case, such opinion is likely to play an important role in the present case. The Ld. 2nd Additional Sessions Court was also pleased to hold that neither the report of the Medical Board describes the petitioner as a man within the meaning of the Indian Penal Code and