The necessity to establish a prima facie case at the stage of framing of charge and the power of the Sessions Court to commit a case for trial if an offence exclusively triable by the Court of Sessions is made out.

JUDGMENT

Swarana Kanta Sharma, J. The instant revision petition under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C.) has been filed by the petitioner seeking setting aside of impugned order on charge dated 27.01.2023 vide which charges were ordered to be framed against the revisionist/petitioner for offences punishable under Sections 354/354B/376 of Indian Penal Code, 1860 (`IPC.) passed by the learned Additional Sessions Judge, SFTC-02, Central District, Tis Hazari Courts, Delhi in SC No.826/2022.

2. Brief facts of the case are that on 20.03.2014, an FIR bearing no.122/2014 was registered under Section 354-B IPC at Police Station Civil Lines, Delhi on the statement of prosecutrix Ms. `P'. It was alleged that the petitioner had misbehaved and had insulted her and had torn clothes of the complainant. During the course of investigation, statement of Ms. `P. was recorded under Section 164 Cr.P.C on 25.03.2014. On the basis of statement of the complainant under Section 161 and 164 Cr.P.C. and other material on record, learned Magistrate had framed charge under Sections 354/354B IPC against the petitioner on 24.01.2015. During examination-in-chief of prosecutrix Ms. `P. recorded on 23.07.2015 and 12.07.2018, the learned Magistrate vide order dated 05.12.2022 and 08.12.2022 had ordered the file to be placed before learned Principal and Sessions Judge, Headquarter, Tis Hazari Courts, Delhi for committal of trial to the Court of Sessions for further trial of the case as a sessions triable case since an offence under Section 376 IPC was made out which was exclusively triable by the Court of sessions. Thereafter, the case was received by the learned Sessions Court and learned Sessions Judge vide impugned order dated 27.01.2023 had framed charge under Sections 354/354B/376 IPC against the petitioner which has been impugned before this Court.

3. Learned counsel for the petitioner argued that learned Trial Court had passed the order in a mechanical manner on the basis of assumptions and presumption. It is submitted that learned Trial Court had failed to appreciate that the complainant had changed her statement several times. It is also argued that Trial Court had failed to consider that the prosecutrix has improved her statement from time to time and had stated in her examination-in-chief before the learned Trial Court that the petitioner had inserted his hand in her private part, this fact was neither disclosed by the complainant in her first statement on the basis of which present FIR was registered nor in her statement under Section 161 Cr.P.C. She had also not disclosed this fact in her statement recorded under Section 164 Cr.P.C. before the learned Magistrate. It is vehemently argued that only in the Court in her examination-in-chief this fact was disclosed on 23.07.2015 and 12.07.2018. It is further stated that the prosecutrix had refused to undergo medical examination and this fact has been completely ignored that she has refused to undergo medical examination as she had not suffered any injury. It is also argued that the learned Trial Court had overlooked the material fact that in case the accused would have inserted his hand in the private part of the prosecutrix, she would have definitely suffered some physical injury. However, since she did not undergo any medical examination, it can be presumed that she is levelling false allegations and even prima facie no case under section 376 IPC is made out against the applicant/petitioner. Learned counsel for the petitioner also argued that the petitioner herein had lodged an FIR under Section 323/341 IPC against the complainant and thereafter the complainant had improved her statement only after the cross FIR was lodged against her, Therefore, it is a motivated FIR.

4. Learned APP for the State, on the other hand, has argued that prosecutrix has levelled specific allegations in her statement under Section 164 Cr.P.C and in the Court against th