1. Heard Sri Amit Kumar Srivastava, learned counsel for the revisionist and the learned A.G.A. appearing for the State and perused the record.

2. The present revision has been filed against the order dated 9.9.2016 passed by the Judicial Magistrate, Baheri, District Bareilly in Complaint CaseNo.135 of 2014 ( Shamim Bani Vs. Wakeel Ahmad), under section 376I.P.C. and section 3/5 of Dowry Prohibition Act, P.S. Sheeshgarh, District Bareilly, whereby the learned Magistrate has rejected the application under Section 204/245 Cr.P.C.

3. It is contended by the learned counsel for the revisionist that though the revisionist and his family members were named in the first information report but after investigation, the Investigating agency had submitted final report in the matter, whereupon the complainant/opposite party no.2 filed protest petition before the concerned court of Magistrate who, in turn, treated it as complaint case. It is further submitted that without considering the facts and circumstances of the case, evidence on record and without applying his mind, learned Judicial Magistrate, Baheri, District Bareilly proceeded the matter as complaint case, which is wholly illegal and not sustainable in the eye of law.

4. Learned counsel for the revisionist further submitted that the allegations and evidences available on record suggest that the present case is a case of breach of promise to marry, hence, no prima facie offence under Section 376 IPC and section 3/5 of Dowry Prohibition Act, is made out against the revisionist. The present prosecution has been instituted with a malafide intention for the purpose of harassment and in order to extract money from the revisionist. The opposite party no.2 is older in age. From the evidence on record it would apparent that the opposite party no.2 developed physical relation with the revisionist as per her own sweet will and volition and therefore, she is a consenting party. Being a mature lady and consenting party the question of continuous rape does not arise. Hence, the prosecution of the revisionist in this case is unfounded and not sustainable in the eye of law. He pointed out certain documents and statements in support of his contention.

5. Learned A.G.A. has submitted that the order impugned, in the present revision has been passed after considering entire facts and evidence on record, which suffers from no illegality or infirmity in law and calls for no interference by this Court under its revisional jurisdiction.

6. It is pertinent to mention here that application under section 482 No. 28401 of 2015 (Wakeel Ahmad Vs. State of U.P. and another) was filed by the revisionist for quashing of the entire proceeding of the complaint case in question, which was dismissed by the Coordinate Bench of this Court vide order dated 21.9.2015.

7. In the case of H.S. Bains Vs. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 the Apex Court has categorically observed as under:-

"The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process of dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (