JUDGMENT

A. K. PARICHHA, J. — This is an application under Section 482 of the Code of Criminal Procedure (in short, “Cr. P.C.”) for quashing the order dated 4.4.2003 passed by the learned J.M.F.C., Nimapara in I.C.C. No. 60 of 2003 directing the Nimapara police authority to conduct investigation into the allegations raised by the opp.party No. 1 in her complaint petition.

2. Opp.Party No. 1 filed complaint case No. 60 of 2003 before the learned J.M.F.C., Nimpara alleging that although she and her husband, the present petitioner are not pulling on well and are living separately, the accused-petitioner visited her at her parent’s house on dated 23.3.2003 and forcibly committed sexual intercourse with her during the night. She also alleged that on the following morning she discovered that the petitioner has decamped after removing her gold ornaments from the box without her consent. According to her she went to the Police Station and informed about the illegal action of the petitioner, but the police authorities asked her to take shelter in the Court and accordingly she filed the complaint case.

3. Learned J.M.F.C., Nimapara forwarded the complaint petition of the opposite party No. 1 to the O.I.C., Nimapara for investigation under Section 156 (3) of the Cr.P.C. and for sub¬mission of final form. Aggrieved with the said order, the peti¬tioner has filed the present application under Section 482, Cr.P.C.

4. Mr. M. R. Sarangi, learned counsel for the petitioner submits that one of the offences alleged in the complaint peti¬tion is under Section 376, I.P.C., which is exclusively triable by the Court of Session and so the learned Magistrate could not have sent the complaint petition for investigation under Section 156 (3) of the Cr. P. C. as proviso to Sec. 202 (1) of the Cr. P. C. debars such direction for investigation. In support of this contention he relies on (2004) 28 OCR-374 *(Laxmidhar Das v. State of Orissa and another), and (2000)18 OCR (SC) 490 (Rosy and another v. State of Kerala and others).

5. Mr. A. Rath, learned counsel for opp.party No. 1, on the other hand, contends that a Magistrate has legal jurisdiction to forward a complaint petition to the police authorities for investigation under Section 156 (3) of the Cr. P. C. even if the offence alleged is exclusively triable by Court of Session. According to him, proviso to Sec. 202 (1), Cr. P. C. does not operate as a bar at the pre-cognizance stage. In this regard he relies on the decision of the Supreme Court in 1976 Crl. L.J. - 1361 (Devarapalli Laxminarayan Reddy v. Narayan Reddy and others). Mr. Rath also contends that the petitioner has no locus standi to approach this Court under Section 482, Cr. P. C. as he is not yet an accused. According to him, a person against whom a complaint is filed does not become an accused until the Court decides to issue process against him. In this regard he relies on a case of Dr. S. S. Khanna v. Chief Secretary, Patna (AIR 1983 SC 595).

6. From the rival contentions of the respective parties the following points emerge for consideration :-

(i) Whether a Magistrate is competent to forward a complaint petition to the police for investigation under Section 156 (3) of the Cr.P.C. when the offence alleged is triable exclusively by Court of Session ?

(ii) Whether a person against whom complaint has been lodged can file a proceeding under Section 482, Cr. P. C. to quash he com¬plaint case before an order has been passed for issue of process against him ?

Section 202 (1), Cr.P.C. reads as follows :

“202. Postponement of issue of Process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authroized to take cognizance or which has been made over to him under Section 192, may, if, he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether