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1. These two petitions under Section 482, Cr. P.C. have been filed by the accused against the two orders of the learned Sessions Judge, Merta City each dated 14-9-1988. Since the original orders by the Munsiff and Judicial Magistrate, Ladnu were passed at different stages in one and the same criminal case, they were heard together and are decided by a single order. By one impugned order, the learned Sessions Judge cancelled the bail under Section 439(2), Cr. P.C. granted to the accused by the learned Munsiff and Judicial Magistrate, Ladnu. By the other impugned order, the learned Sessions Judge quashed the order of the Magistrate dated 4-10-87 by which the Magistrate refused to take cognizance of the offences under Sections 457 and 376, I.P.C. and instead took cognizance of the offence under Section 448, I.P.C.

2. For a proper appreciation of the controvercies involved, it would be proper to notice the material facts in brief.

3. Smt. Samander Kanwar, the prosecutric appeared at Police Station, Ladnu on 11-9-1987 and presented a written report stating therein that when she was sleeping on the roof of her house in village Gudila in the night between 8th and 9th September, 1987, accused Prahlad Singh at about 11 p.m. stealthily entered her house and over powered her. He thereafter committed rape on her. She could not raise cries as the accused threatened to kill her. After committing the crime, the accused slipped away. She raised cries and many persons collected out-side her house. The Police registered a case under Sections 376 and 457, I.P.C. and proceeded with the investigation. The accused was arrested aroung 8 a.m. on 16-9-1987 and was presented before the Judicial Magistrate, Ladnu on the same day. He remanded him to judicial custody. The accused moved an application for bail before the Magistrate on 17-9-1987. The learned Magistrate after hearing the public proecutor and the counsel for the accused on 17-9-1987 itself, allowed the application and passed an order to release him on bail on furnishing personal and surety bonds each in the amount of Rs. 5000/-. The prosecutrix approached the Sessions Judge under Section 439(2), Cr P.C. and prayed for cancellation of bail of the accused granted to him by the Magistrate, While the proceedings for cancellation of bail were pending before the learned Sessions Judge, the police submitted a challan against the accused on 12-10-1987. The case was taken up on 14-10-87 by the Magistrate. It was contended before him on behalf of the accused that from the evidence and material collected during investigation by the police, no offence under Sections 376 and 457, I.P.C. could be said to have been made out. The magistrate heard the A.P.P. and the counsel for the accused. By his impugned order dated 14-10-1987 he allowed the contention raised on behalf of the accused. As a result, he refused to take cognizance of the offences under Sections 376 and 457, I.P.C. and instead took cognizance of the offence under Section 448, I.P.C. The prosecutrix again went in revision before the learned Sessions Judge and challenged the order of the Magistrate.

4. Learned Sessions Judge heard both the matters together and by his orders dated 14-9-1988 cancelled the bail under Section 439(2), Cr. P.C. granted to the accused by the Magistrate. By another order of the same day, he allowed the revision filed by the prosecutrix and set aside the order of the Magistrate dated 14-10-87, by which the Magistrate had refused to take cognizance of the offences under Sections 457 and 376, I.P.C. and took cognizance of the offence under Section 448, I.P.C. Aggrieved against the aforesaid orders of the Sessions Judge, Merta passed on 14-9-1988, the accused had approached this Court under Section 482, Cr. P.C.

12. Learned Magistral laid much emphasis on the words "it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions" occurring in Section 209, Cr. P.C. and made an attempt to derive help from these words that it was open to him to find out whether the material collected by the police made it appear that the offence triable exclusively by the Court of Sessions, was there. This approach of the Magistrate is not warranted because what he is to do is to peruse the police report. He is to see only the facts recited in the police report to find out whether a case exclusively triable by the Sessions Judge was or was not made out. He is debarred from scrutnizing the evidence collected during investigation and to reject it on merits. Learned Magistrate declined to take cognizance of the offences under Sections 457 and 376, I.P.C. and instead took cognizance of the offence under Section 448, I.P.C. It need not be stressed that an offence under Section 448, I.P.C. is minor in nature than under Sections 457 and 376, I.P.C. Now when the cognizance of a minor offence was taken by the Magistrate, it necessarily resulted in a discharge of the accused from the major offence under Sections 457 and 376, I.P.C. Virtually, the order of the Magistrate is an order of discharge. Learned Magistrate which he could not do Under Section 209, Cr. P.C. was done by him under Section 190, Cr. P.C. He did so as clever ploy to discharge the accused. Learned Sessions Judge rightly set aside the order of the Magistrate and no interfernece is called for.