Charges of rape, unnatural offence: HC dismisses revision petition; ‘only Session Court can conduct trial’

When notice of the cancellation report was issued to the complainant, she filed a protest petition against the cancellation of the FIR, and for adding offences under Section 328 (Causing hurt by means of poison, etc., with intent to commit an offence) of IPC, and Section 7 of the PC Act, 1988, against Dr Ashok Kumar and against four investigating officers, who as per the complainant deliberately conducted a wrong investigation for illegal gratification to help the petitioner escape criminal prosecution.

Upon recording preliminary evidence and considering the material on record, the Special Court vide order dated January 6, 2023, came to the conclusion that only against the petitioner there were prima facie grounds to believe the commission of offences punishable under Sections 328, 376 (rape) and 377 (unnatural offences) IPC and he was summoned. Hence, the instant revision petition by Dr Kumar, at HC.

Dr Kumar’s counsel submitted before HC that the Special Court, which is a Court of Session, has no jurisdiction to take cognizance of the offence as a court of original jurisdiction since the case was never committed to it by a magistrate. It was argued further that the magistrate is not merely a post office at the stage of commitment, but is required to apply his judicial mind prudently which was not done in this case. Therefore, the summoning order becomes unsustainable in law. Dr Kumar’s counsel argued that the investigating agency carried out the investigation in a proper scientific manner and came to the conclusion that no offence was made out against the petitioner. The Special Court, by ignoring the scientific evidence, has summoned the accused without there being sufficient material before it to do so.

Counsel for the complainant, senior advocate Vinod Ghai, with Kashish Sahni, and Chahat Aggarwal, on the contrary, argued that it is a clear case of a botched investigation only to give clean chit to the petitioner. Otherwise, there is enough material on record, medical as well as electronic, apart from the complainant’s statement under Section 164 CrPC, to establish commission of the alleged offence against the petitioner. He has been rightly summoned by the Special Court, and there is no illegality about it. He has further submitted that the offence alleged against the petitioner are triable exclusively by the Court of Session and the Special Court has been constituted specifically for that purpose.

The Bench of Justice Tribhuvan Dahiya, after going by the provisions of Sections 193 and 209 CrPC held that, in case, offence alleged is exclusively triable by a Court of Sessions, the Magistrate has no option but to commit the case to the Court of Session. In that eventuality, he is not required to make any inquiry into the matter before committal.

The limited jurisdiction conferred upon the Magistrate, therefore, is only to ascertain nature of the offence.

Justice Dahiya, while referring to a judgement of the Supreme Court said, “it is apparent that the Magistrate has no jurisdiction to hold any inquiry in the matter as the offences are exclusively triable by the Court of Session. He is forbidden from applying judicial mind, and is mandated only to perform an administrative role of furnishing the documents as envisaged under Section 207 and 208 Cr.P.C., and commit the case to the Sessions Court. The argument advanced by learned counsel for the petitioner, therefore, has no legs to stand upon, and is hereby rejected.”
Thus holding that “The preliminary evidence on record, duly establishes prima facie case to summon the petitioner for the offences alleged”, the HC dismissed the plea of petitioner.