The court upheld the framing of an additional charge under Section 376, affirming that a de novo trial is required after a case is committed to the Sessions Court.

JUDGMENT :

Cheekati Manavendranath Roy, J.

1. In this Special Criminal Application filed under Article 227 of the Constitution of India, the petitioner prays to quash and set aside the order dated 22.08.2019 of the learned Judicial Magistrate First Class, Liliya framing additional charge under section 376 of Indian Penal Code, 1860 and to set aside the order dated 30.12.2020 passed by learned Additional Sessions Judge, Savarkundala confirming the order of the Magistrate in the Criminal Revision preferred before him.

2. Heard learned counsel for the petitioner Mr. Jigesh K Shah and learned Public Prosecutor for the State.

3. Facts leading to the lis in this application may be stated as follows:

The de facto complainant is an anganvadi worker working in anganvadi Centre of Liliya. It is stated that on 03.10.2017 at about 01:30 pm when she was on duty in the anganvadi Centre, the petitioner herein who is resident of Liliya entered the room in the office where she is working and insisted her to surrender to him and thereby hugged her with his forearm and laid her on the floor and inserted his hand in her blouse and gripped her chest and he has also inserted his finger in her vagina. When she shouted, he ran away threatening her that if she complains to anyone that he would kill her.

4. Thereafter, the de facto complainant lodged a report with the police relating to the above incident. Police registered the FIR against the petitioner who is the sole accused in the said case only for the offences punishable under sections 354, 354A and 506(2) of Indian Penal Code, 1860. Eventually, after completion of investigation charge-sheet was also filed in the Court of learned Judicial Magistrate First Class, Liliya for the aforesaid offences.

5. The learned Magistrate has taken cognizance of the above offences against the petitioner and he has also framed charges only for the aforesaid offences. The trial in the said case commenced. About four witnesses including the de facto complainant were examined before the learned Magistrate. At that stage, the de facto complainant filed an application through the learned A.P.P before the learned Magistrate to frame additional charge under section 376 of Indian Penal Code, 1860 stating that the allegations ascribed in the FIR as well as in the evidence given by the de facto complainant constitutes an offence punishable under section 376 of Indian Penal Code, 1860. According to the complainant the said allegations clearly constitute an offence as defined under section 375(b) of Indian Penal Code, 1860.

6. The learned Magistrate has allowed the said application and has framed an additional charge under section 376 of Indian Penal Code,1860 as the facts of the case constitutes an offence of rape as defined under section 375(b) of Indian Penal Code, 1860. As the said offence under section 376 of Indian Penal Code is triable by a court of Sessions, he has invoked section 323 of Code of Criminal Procedure, 1973 and committed the said case to the Court of Sessions.

7. The petitioner has challenged the said order of framing additional charge under section 376 of Indian Penal Code, 1860 and the order of committal before the sessions court by way of preferring a criminal revision against the said order under section 397(1) of Code of Criminal Procedure, 1973. The learned Sessions Judge upheld the order of the learned Magistrate and by his order dated 30.12.2020 has dismissed the said revision.

8. Aggrieved by the impugned orders of the learned Magistrate and the learned revisional Court, the petitioner is before this Court by way of filing this application under Article 227 of the Constitution of India assailing the legality and validity of the impugned orders.

9. Learned counsel for the petitioner vehemently contended that the said allegations are very much made in the FIR itself when it was lodged and the police did not register any case under section 376 of Indian Penal Code, 1860 and even at the time of filing charge-s