Hon’ble Surya Prakash Kesarwani, J.—Heard learned counsel for the applicant and the learned A.G.A.

2. This criminal misc. application under Section 482 Cr.P.C. has been filed praying to quash the order dated 17.1.2017 in Case No. 52 of 2016 (Manju Devi v. Sanjay Yadav and others) passed by the Court of Additional Session Judge, Court No. 9, Varanasi under Section 376-D, 323, 506 IPC and Section 4 of Protection of Children from Sexual Offences Act, (hereinafter to be referred as ‘POCSO Act’), P.S. Jansa, District Varanasi

3. Briefly stated facts of the present case are that on an application dated 6.7.2016 was filed by the applicant under Section 156(3) of the Criminal Procedure Code (hereinafter to be referred as ‘Cr.P.C.’) a complaint case being Case No. 52 of 2016 was registered. The aforesaid case has been rejected by the impugned order dated 17.1.2017 on the ground that there is no evidence of sexual assault by the accused, it is not clear from the medical examination report that the applicant has been sexually assaulted and the applicant could not clarify that what she did mean by the allegation of “Galat Kaam”.

4. Learned counsel for the applicant submits that in para 10 of the application, the applicant has made clear averments of rape on 29.6.2016 by the accused. He submits that the statement of facts made in the application was supported by the statement of complainant recorded under Section 200 Cr.P.C. and the statement of witnesses recorded under Section 202 Cr.P.C. He submits that at this stage, the Magistrate has to see as to whether there is prima facie evidence in support of the allegations of the complaint and not whether the evidence is sufficient to warrant a conviction. The inquiry under Section 202 Cr.P.C. is not to be linked to a trial which can only take place after process is issued. He further submits that dismissal of the complaint by the Court below is contradictory to the provisions of Section 203 Cr.P.C.

5. Learned A.G.A. supports the impugned order.

6. I have carefully considered the submissions of learned counsel for the appellant and the learned A.G.A.

7. Briefly stated facts of the present case are that according to the applicant, she alongwith her minor daughter (Neha Bind) was returning at about 9.00 p.m. on 29.6.2016 from the Clinic of a doctor. While she was about 1/2 km away from her home, the accused Sanjay Yadav, Shrinath Singh and Jai Prakash Singh came on motorcycle and intercepted her and her daughter on the brick road, terrorized them on gun point and forcibly carried them to a nearby closed brick kiln where they raped her and her daughter and threatened them to kill, if the open their mouth. The submissions made in para 1 of the complaint application dated 6.7.2016 is reproduced below:

^^1& ;g fd ifjokfnuh eUtwnsoh iRuh fot; dqekj fuokfluh xzke jk[kh Fkkuk tUlk okjk.klh fnukad 29-6-2016 dks jkr djhc 9 cts viuh ukckfyx iq=h usgk fcUn dks MkW0 lkgc ds ;gka ls fn[kk dj nok ysdj ?kj vk jgh Fkh fd ?kj ls yxHkx vk/kk fd0eh0 igys [kM+Utk ekxZ ij foi{khx.k lat; ;kno o JhukFk flag o t; izdk'k flag eksVj lkbfdy ls ihNs ls vpkud vkdj cUnwd dh uksd ij vkrafdr dj tcjnLrh esjs o esjh ukckfyx iq=h usgk ds lkFk ikl ds cUn HkV~Bk ds ikl ys tkdj xyr dke ¼nq"deZ½ fd;s] tkrs oDr /kedh fn;s fd vxj eqag [kksyk rks cnuke dj tku ls ekj Mkysaxs^^

8. It has further been stated in para 2 and 3 of the application by the applicant that in the night of the same day after occurrence of the aforesaid incident, she alongwith her daughter and husband, went to police station Jansa, district Varanasi to report the incident but the Inspector of the police station returned them saying that “first go and get the medical examination of the injuries”. On the next date i.e. on 30.6.2016, she got her injuries medically examined and again went to the police station but her FIR was not registered. Therefore, she moved an application on 1.7.2016 before the Superintendent of Police, Varanasi but her FIR was not registere