1. Challenge in this petition is to the order dated 9/01/2017 passed by Additional Sessions Judge (F.T.C.), Dantewada in Sessions Case No. 287/2016 wherein the application for discharge of the applicant was dismissed.

2. Brief facts of this case are that report was made by the complainant/victim aged about 28 years that she was working as AG-II in the office of Collectorate Sukma and was living at Dantewada from 2010 to obtain the degree of B.Ed. At the relevant time the applicant Sanjay Kumar Sori was posted as AG-III at District Hospital Sukma and they came to know each other and subsequently had developed the cordial relations. It is further alleged that the applicant disclosed his identity to be an unmarried boy and on 9/02/2016 the applicant performed marriage at Raipur and thereafter physical relation was developed for period from 9/02/2016 to 13/02/2016. Subsequently, they came back to Dantewada and it was disclosed by the applicant that the family members of the applicant would be angry with such marriage and was kept separately however subsequently when she went along with the applicant to his home, it revealed that the applicant was already married having two children. Having known such fact that the applicant has played fraud with the victim she objected to it wherein she was assaulted and was given threat that nude pictures which were taken that of victim would be made public. Thereafter, she was forcefully deserted and left by the applicant accused. Initially the report was not lodged as after the incident she was in panic that obscene picture would be made public, however subsequently with the consultation of other person report was made. It was stated that on the basis of fraud and concealment of fact the applicant committed sexual intercourse which resulted into mental and physical torture. On the basis of such report FIR was lodged on 4/08/2016 and after investigation charge sheet was filed on 1/11/2016 (Annexure A-3) u/s 376, 494, 506 read with section 34 of IPC.

3. After filing of charge sheet the applicant had moved an application for discharge. The predominant ground was taken that victim is a major lady had consented for sexual intercourse further the report was made after six months of the incident and mainly the cognizance of Section 494 IPC which is covered under chapter XX of the IPC could not have been taken by the court since no separate complaint was filed by the complainant. It was further contended that she herself performed marriage with the applicant, therefore case under Section 376 IPC would not be made out. It is stated that in order to prosecute a person U/s. 494 of I.P.C., the rider of Section 198 of Cr.P.C. would come into play and police could not have taken cognizance of it.

4. Learned counsel Shri P.R. Patankar during his argument before the court strenuously pressed his contention and would submit that as per law laid down in case of Mahesh Kumar Dhawan Vs. State of M.P. and Anr. reported in 2012 (2) MPHT 158 the cognizance taken under Section 494 IPC would be without any jurisdiction as section 198 Cr.P.C. do not allow the same. He would further submit that offence under Section 376 IPC alleged sexual intercourse was out of result of marriage, therefore it would not fall under the category of rape. He placed his reliance in case of Mahendra Kumar Jain and Ors. Vs. State of U.P. and Anr. reported in 1988 CRI.L.J 544 of Allahabad High Court. It is contended that complaint is defined under Section 2(d) of the Cr.P.C which necessarily point out that written complaint should have been filed which do not include police complaint and the written complaint having not been filed cognizance under Section 494 of IPC could not have been taken by the court and can be investigated by police.

5. The initial reading of the first schedule appended to IPC indicate that offence under Section 494 IPC is non-cognizable and bailable. It is thus obvious that police should not take cognizance of the offe