AJAY KUMAR PARMARversusSTATE OF RAJASTHAN

                         [20'12] 8 S.C.R. 970


A                     AJAY KUMAR PARMAR
                                  v.
                      STATE OF RAJASTHAN
                (Criminal Appeal No. 1496 of 2012)

                       SEPTEMBER 27, 2012
B
         [DR. 8.5. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

         Code of Criminal Procedure, 1973 - ss. 207 to 209 and
C   s. 164 - Power of Magistrate - FIR alleging commission of
    rape - Thereafter prosecutrix approaching the Chief Judicial
    Magistrate (CJM) on her own seeking to record her statement
    uls. 164 Cr.P.C - As per order of CJM, Judicial Magistrate
    recording her statement u/s. 164 - The prosecutrix in her
D   statement uls. 164 exonerating the accused of the allegations
    - Police filing charge-sheet - The Judicial Magistrate, in view
    of the statement of the prosecutrix uls. 164, discharging the
    accused - The order of Magistrate set aside by Revisional
    Court as well as High Court - On appeal, held: Order of
E   Magistrate rightly set aside - The statement u/s. 164 was not
    recorded correctly as th.e prosecutrix was not produced before
    the Magistrate by police and that her statement was recorded
    without identifying her - The order of discharge was a nullity
    without jurisdiction as the matter was cognizable by the
F   Sessions Court - Magistrate had no jurisdiction to probe into
    the matter - He was bound under law to commit the case to
    the Sessions Court - It was also not permissible to examine
    weight of the evidence at that stage - The signature of the
    prosecutrix on the papers before CJM and Judicial Magistrate
G   also did not tally with signatures on FIR and Medical Report
    which creates suspicion.

        Evidence Act, 1872 - s. 73 - Comparison of signature!
  writing by the court - Held: There is no legal bar to prevent
  the court from such comparison - But the court as a matter
H                              970
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN               971


of prudence and caution should be slow to base its findings   A
solely upon the comparison made by it - The court can apply
its observation on the expert opinion or that of any other
witness.

     FIR was lodged against the appellant-accused
alleging rape. Prosecutrix, thereafter appeared before        8
Chief Judicial Magistrate and lodged a complaint stating
that the police was not investigating the case properly
and filed an application that her statement be recorded
uls. 164 Cr.P.C. The application was allowed.
Consequently, the Judicial Magistrate recorded the            C
statement of the prosecutrix uls. 164 Cr.P.C. to the effect
that the .FIR lodged by her was false; that her statement
uls. 161 Cr.P.C. was also false and that no offence was
ever committed by the appellant-accused.
                                                              D
    Af1er conclusion of the investigation, police filed
charge-sheet against the appellant. The Judicial
Magistrate, taking note of the statement uls. 164 Cr.P.C.,
passed an order of not taking cognizance of offences ul
ss. 376 and 342 IPC and discharged the appellant-             E
accused.

    State filed revision and the same was allowed by
Sessions Court reversing the order of the Magistrate. The
order of Sessions Court was affirmed by High Court.
Hence the present appeal.                                     F

    Dismissing the appeal, the Court
     HELD: 1.1. The revisional court as well as the High
Court have rightly held that the statement under Section
164 Cr.P.C. had not been recorded correctly. The said         G
courts have rightly set aside the order of the Judicial
Magistrate, not taking the cognizance of the offence. A
statement u/s. 164(5) Cr.P.C. can be recorded, only and
only when, the person making such statement is
produced before the Magistrate by the police. In case         H
    972     SUPREME COURT REPORTS               [2012] 8 S.C.R.


A such a course of action, wherein such person is allowed
  to appear before the Magistrate of his own volition, is
  made permissible, and the doors of court are opened to
  them to come as they please, and if the Magistrate starts
  recording all their .statements, then too many persons
B sponsored by culprits might throng before the portals of
  the Magistrate courts, for the purpose of creating record
  in advance to aid the said culprits. [Paras 5] [982-8-0]

        Jogendra Nahak and Ors. v. State of Orissa and Ors. AIR
    1999 SC2565: 1999 (1) Suppl. SCR 39 - relied on.
c
         1.2. The Chief Judicial Magistrate, who entertained
    the application and further directed the Judicial
    Magistrate, to record the statement of the prosP~utrix,
    was not known to the prosecutrix in the case and the
0   latter also recorded her statement, without any attempt
    at identification, by any court officer/lawyer/police or
    anybody else. The application filed before the Chief
    Judicial Magistrate, has been signed by the prosecutrix,
    as well as by her counsel. However, there has been no
E   identification of the prosecutrix, either by the said
    advocate or by anyo11e else. The Chief Judicial
    Magistrate, proceeded to deal with the application without
    identification of the prosecutrix and has no where
    mentioned that he knew the prosecutrix personally. The
    Judicial Magistrate, recorded the statement of the
F   prosecutrix after she was identified by the lawyer. There
    is nothing on record to show that she had appeared
    before the Chief Judicial Magistrate, or before the Judicial
    Magistrate, alongwith her parents or any other person
    related to her. In such circumstances, the statement so
G   recorded, loses its significance and legal sanctity. The
    fact-situation reveals that the court proceeded with
    utmost haste and any action taken so hurridly, can be
    labelled as arbitrary. [Paras 7, 16 and 17] [982-G-H; 986-
    G-H; 987-A-8, D-E]
H
  AJAY KUMAR PARMAR v. STATE OF RAJASTHAN                973


    Mahabir Singh v. State of Haryana AIR 2001 SC 250:          A
2001 (1) Suppl. SCR 37 - relied on.

     2.1. When an offence is cognizable by the Sessions
court, the Magistrate cannot probe into the matter and
discharge the accused. It is not permissible for him to do      B
so, even after considering the evidence on record, as he
has no jurisdiction to probe or look into the matter at all.
His concern should be to see what provisions of the
Penal statute have been mentioned and in case an
offence triable by the Sessions Court has been
mentioned, he must commit the case to the Sessions              C
Court and do nothing else. Thus, the Magistrate had no
business to discharge the appellant. He was bound under
law, to commit the case to the Sessions Court, where
such application for discharge would be considered. The
order of discharge is therefore, a nullity, being without       D
jurisdiction. [Paras 9 and 10] [983-G-H; 984-A-D]

    Sanjay Gandhi v. Union of India AIR 1978 SC 514: 1978
(2) SCR 861 - relied on.
                                                                E
     2.2. It was not permissible for the Judicial Magistrate,
to take into consideration the evidence in defence
produced by the appellant at the time of framing the
charge, the only documents which are required to be
considered are the documents submitted by the
investigating agency alongwith the charge-sheet. Any            F
document which the accused want to rely upon cannot
be read as evidence. If such evidence is to be considered,
there would be a mini trial at the stage of framing of
charge. That would defeat the object of the Cr.P.C. The
provision about hearing the submissions of the accused          G
as postulated by Section 227 means hearing the
submissions of the accused on the record of the case as
filed by the prosecution and documents submitted
therewith and nothing more. Even if, in a rare case it is
permissible to consider the defence evidence, if such           H
    974    SUPREME COURT REPORTS              [2012] 8 S.C.R.


A material convincingly establishes that the whole
  prosecution version is totally absurd, preposterous or
  concocted, the instant case does not fall in that category.
  [Para 11] [984-0-H]

B      State of Orissa v. Debendra Nath Padhi AIR 2003 SC
  1512; State ofOrissa v. Debendra Nath Padhi AIR 2005 SC
  359: 2004 {6) Suppl.SCR 460; S.M.S. Pharmaceuticals
  Ltd. v. Neeta Bhalla and Anr. AIR 2005 SC 3512: 2005 (3)
   Suppl. SCR 371; Bharat Parikh v. C.B.I. and Anr. (2008) 10
C SCC 109: 2008 (10) SCR 950; Rukmini Narvekar v. Vijaya
  Satardekar and Ors. AIR 2009 SC 1013: 2008 (14) SCR 271
  - relied on.

       2.3. The court should not pass an order of acquittal
  by resorting to a course of not taking cognizance, where
D prima facie case is made out by the Investigating Agency.
  More so, it is the duty of the court to safeguard the right
  and interests of the victim, who does not participate in
  discharge proceedings. At the stage of application of
  Section 227, the court has to shift the evidence in order
E to find out whether or not there is sufficient ground for
  proceeding against the accused. Thus, appreciation of
  evidence at this stage, is not permissible. [Para 12) [985-
  B-0]
       P. Vijayan v. State of Kera/a and Anr. AIR 2010 SC
F 663: 2010(2) SCR 78; R.S. Mishra v. State of Orissa and
  Ors. AIR 2011 SC 1103 2011 (2) SCR 338 - relied on.

       2.4. The scheme of Cr.P.C. particularly, the provisions
  of Sections 207 to 209 Cr.P.C., mandate the Magistrate to
G commit the case to the Court of Sessions, when the
  charge-sheet is filed. A conjoint reading of these
  provisions make it crystal clear that the committal of a
  case exclusively triable by the Court of Sessions, in a
  case instituted by the police is mandatory. [Para 13) [985-
H 0-E]
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN            975


     2.5. Where the Magistrate decides not to take A
cognizance and to drop the proceeding or takes a view
that there is no sufficient ground for proceeding against
some of the persons mentioned in the FIR, notice to
informant and grant of being heard in the matter,
becomes mandatory. In the case at hand, admittedly, the B
Magistrate has not given any notice to the complainant
before dropping the proceedings and, thus, acted in
violation of. the mandatory requirement of law. [Para 15)
[986-E-F]                                 .

     Minu Kumari and Anr. v. State of Bihar and Ors. AIR C
2006 SC 1937: 2006 (3) SCR 1086; Bhagwant Singh v.
Commissioner of Police andAnr. AIR 1985 SC 1285: 1985
(3) SCR 942 - distinguished.
    3.1. In comparision of signatures of the prosecutrix o
on FIR and on Medical Report with the signatures
appearing upon the application filed before the Chief
Judicial Magistrate, for recording her statement under
Section 164 Cr.P.C., as also with, the signature on the
statement alleged to have been made by her under E
Section 164 Cr.P.C., and after examining the same, prima
facie it appears that they have not been made by the
same person, as the two sets of signatures do not tally,
rather there is an apparent dissimilarity between them.
[Para 18) [987-E-G]
                                                           F
      3.2: From the siQnatures on the FIR and Medical
Report, it appears that she is not an educated person and
can hardly forin her own signatures. Thus, it leads to
suspicion regarding how an 18 year old, who is an
illiterate rustic villager, reached the court and how she G
knew that her statement could be recorded by the
Magistrate. [Para 24) [990-G-H; 991-A]
    3.3. Evidence of identity of handwriting has been
dealt with by three Sections of the Indian Evidence Act,
1872 i.e. Sections 45, 47 and 73. Section 73 of the        H
    976    SUPREME COURT REPORTS             [2012] 8 S.C.R.


A Evidence Act provides for a comparison made by the
  Court with a writing sample given in its presence, or
  admitted, or proved to be the writing of the concerned
  person. There is no legal bar to prevent the court from
  comparing signatures or handwriting, by using its own
s eyes to compare the disputed writing with the admitted
  writing and then from applying its own observation to
  prove the said handwritings to be the same or different,
  as the case may be, but in doing so, the court cannot
  itself become an expert in this regard and must refrain
c from playing the role of an expert, for the simple reason
  that the opinion of the court may also not be conclusive.
  Therefore, when the court takes such a task upon itself,
  and findings are recorded solely oh the basis of
  comparison of signatures or handwritings, the court must
  keep in mind the risk involved, as the opinion formed by
0
  the court may not be conclusive and is susceptible to
  error, especially when the exercise is conducted by one,
  not conversant with the subject. The court, therefore, as
  a matter of prudence and caution should hesitate or be
  slow to base its findings solely upon the comparison
E made by it. However, where there is an opinion whether
  of an expert, or of any witness, the Court may then apply
  its own observation by comparing the signatures, or
  handwritings for providing a decisive weight or influence
  to its decision. [Paras 19 and 23] (987-H; 988-A; 989-F-H;
F 990-A-B]

      Ram Chandra and Anr. v. State of Uttar Pradesh AIR
  1957 SC 381; lshwari Prasad Misra v. Mohammad Isa AIR
  1963 SC 1728: 1963 SCR 722;Shashi Kumar Banerjee and
G Ors. v. Subodh Kumar Banerjee AIR 1964 SC 529;
  Fakhruddin v. The State of Madhya Pradesh AIR 1967 SC
  1326; State of Maharashtra v. Sukhdeo Singh and Anr. AIR
  1992 SC 2100: 1992 (3) SCR 480; Murari Lal v. State of
  Madhya Pradesh AIR 1981 SC 363; Neelalohithadasan
H Nadar v. George Mascrene and Ors. 1994 Supp. (2) SCC
AJAY KUMAR PARMAR v. STATE OF RAJASTHAN            977


619; 0. Bharathan v. K. Sudhakaran and Anr. AIR 1996 SC A
1140; La/it Popli v. Canara Bank and Ors. AIR 2003 SC 1795;
Jagjit Singh v. State of Haryana and Ors. (2006) 11 SCC
1: 2006 (10) Suppl. SCR 521 ; Thiruvengada Pillai v.
Navaneethammal AIR 2008 SC 1541: 2008 (3) SCR 23; G.
Someshwar Rao v. Samineni Nageshwar Rao and Anr. (2009) B.
14 SCC 677: 2009 (11) SCR 676 - relied on.
                   Case Law Reference:
    1999 (1) Suppl. SCR 39    Relied on        Para 5
    2001 (1) Suppl. SCR 37    Relied on        Para 6
                                                          c
    1978 (2) SCR 861          Relied on        Para 8
    AIR 2003 SC 1512          Relied on        Para 11
    2004 (6) Suppl. SCR 460   Relied on        Para 11    D
    2005 (3) Suppl. SCR 371 Relied on          Para 11
    2008 (10) SCR 950         Relied on       . Para 11
    2008 (14) SCR 271         Relied on        Para 11    E
    2010 (2) SCR 78           Relied on        Para 12
    2011 (2) SCR 338          Relied on        Para 12
    2006 (3) SCR 1086         Distinguished    Para 15
                                                          F
    1985 (3) SCR 942          Distinguished    Para 15
    AIR 1957 SC 381           Relied on        Para 19
    1963 SCR 722              Relied on        Para 19
    AIR 1964 SC 529           Relied on        Para 19    G
    AIR 1967 SC 1326          Relied on        Para 19
    1992 (3) SCR 480          Relied on        Para 19

    AIR 19~1 SC 363           Relied on        Para 20    H
    978       SUPREME COURT REPORTS                [2012] 8 S.C.R.


A         1994 Supp. (2) sec 619       Relied on         Para 21
          AIR 1996 SC 1140             Relied on         Para 22
          AIR 2003 SC 1795             Relied on         Para 22
          2006 (10) Suppl. SCR 521 Relied on             Para 22
B
          2008 (3) SCR 23              Relied on         Para 22
          2009 (11) SCR 676            Relied on         Para 22
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
c No. 1496 of 2012.
        From the Judgment & Order dtaed 9.1.2012 of the High
    Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal
    Revision Petition No. 458 of 1998.
D
          Aishwarya Bhati, Jyoti Upadhyay for the Appellant.

          lrshad Ahmad for the Respondent.

          The Judgment of the Court was delivered by
E
        DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
  against the impugned judgment and order dated 9.1.2012
  passed by the High Court of Judicature for Rajasthan at
  Jodhpur in S.B. Criminal Revision Petition No. 458 of 1998,
  by way of which, the High Court has upheld the judgment and
F order dated 25.7.1998, passed by the Sessions Judge in
  Revision Petition No. 5 of 1998. By way of the said revisional
  order, the court had reversed the order of discharge of the
  appellant for the offences under Sections 376 and 342 of the
  lr.dian Penal Code, 1860 (hereinafter referred to as the 'IPC')
G dated 25.3.1998, passed by the Judicial Magistrate, Sheoganj.

         2. The facts and circumstances giving rise to this appeal
    are as follows:

          A. An FIR was lodged by one Pushpa on 22.3.1997,
H
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN                     979
           [DR. B.S. CHAUHAN, J.]

against the appellant stating that the appellant had raped her       A
on 10.3.1997. In view thereof, an investigation ensued and the
appellant was medically examined. The prosecutrix's clothes
were then also recovered and were sent for the preparation of
FSL report. The prosecutrix was medically examined on
22.3.1997, wherein it was opined by the doctor that she was          B
habitual to sexual intercourse, however, a final opinion regarding
fresh intercourse would be given only after receipt of report from
the Chemical Examiner.

      B. The statement of the prosecutrix was recorded under
 Section 161 of Code of Criminal Procedure, 1973, (hereinafter       C
 referred to as 'the Cr.P.C.'), by the Dy.S.P., wherein she
 narrated the incident as mentioned in the FIR, stating that she
 had been employed as a servant at the residence of one sister
 Durgi for the past six years. Close to the residence of sister
 Durgi, Dr. D.R. Parmar and his son Ajay Parmar were also            D
residing. On the day of the said incident, Ajay Parmar called
 Pushpa, the prosecutrix home on the pretext that there was a
telephone call for her. When she reached the residence of Ajay
 Parmar, she was raped by him and was restrained from going
out for a long period oT time and kept indoors without provision     E
of any food or water. However, the next evening, she was
pushed out surreptitiously from the back exit of the said house.
She then tried to commit suicide but was saved by Prakash
Sen and Vikram Sen and then, eventually, after a lapse of about
10 days, the complaint in question was handed over to the SP,        F
Sirohi. Subsequently, she herself appeared before the Chief
Judicial Magistrate, Sirohi on 9.4.1997, and moved an
application before him stating that, although she had lodged an
FIR under Section 376/342 IPC, the police was not investigating
the case in a correct manner and, therefore, she wished to make      G
her statement under Section 164 Cr.P.C.

    C. The Chief Judicial Magistrate, Sirohi, entertained the
said application and disposed it of on the same day, i.e.

                                                                     H
    980     SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A 9.4.1997 by directing the Judicial Magistrate, Sheoganj, to
  record her statement under Section 164 Cr.P.C.

         D. In pursuance thereof, the prosecutrix appeared before
    the Judicial Magistrate, Sheoganj, which is at a far distance
    from Sirohi, on 9.4.1997 itself and handed over all the requisite
8
    papers to the Magistrate. After examining the order passed by
    the Chief Judicial Magiastrate, Sirohi, the Judicial Magistrate,
    Sheoganj, directed the public prosecutor to produce the Case
    Diary of the case at 4.00 P.M. on the same day.

C      E. As the public prosecutor could not produce the Case
  Diary at 4.00 P.M, the Judicial Magistrate, Sheoganj, directed
  the Public prosecutor to produce the Case Diary on 10.4.1997
  at 10.00 A.M. The Case Diary was then produced before the
  said court on 10.4.1997 by the Public prosecutor. The
D Statement of the prosecutrix under Section 164 Cr.P.C., was
  recorded after being identified by the lawyer, to the effect that
  the said FIR lodged by her was false; in addition to whieh, the
  statement made by her under Section 161 Cr.P.C., before the
  Deputy Superintendent of Police was also false; and finally that
E no offence whatsoever was ever committed by the appellant,
  so far as the prosecutrix was concerned.

        F. After the conclusion of the investigation, charge sheet
  was filed against the appellant. On 25.3.1998, the Judicial
  Magistrate, Sheoganj, taking note of the statement given by the
F prosecrutix under Section 164 Cr.P.C., passed an order of not
  taking cognizance of the offences under Sections 376 and 342
  IPC and not only acquitted the appellant but also passed
  strictures against the investigating agency.

G      G. Aggrieved, the public prosecutor filed a revision before
  the Learned Sessions Judge, Sirohi, wherein, the aforesaid
  order dated 25.3.1998 was reversed by order dated 25.7.1998
  on two grounds, firstly, that a case under Sections 376 and 342
  IPC was triable by the Sessions Court and the Magistrate,
H therefore, had no jurisdiction to discharge/acquit the appellant
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN                       981
           [DR. B.S. CHAUHAN, J.]

on any ground whatsoever, as he was bound to commit the               A
case to the Sessions Court, which was the only competent
court to deal with the issue. Secondly, the alleged statement
of the prosecutrix under Section 164 Cr.P.C. was not worth
reliance as she had not been produced before the Magistrate
~hpol~.                                                               B

      H. Being aggrieved by the aforesaid order of the Sessions
Court dated 25.7.1998, the appellant moved the High Court
and the High Court vide its impugned judgment and order,
affirmed the order of the Sessions Court on both counts.
                                                                      c
     Hence, this appeal.

     3. Ms. Aishwarya Bhati, learned counsel appearing on
behalf of the appellant, has submitted that in view of the
statement of the prosecutrix as recorded under Section 164            0
Cr.P.C., the Judicial Magistrate, Sheoganj, has rightly refused
to take cognizance of the offence and has acquitted the
appellant stating that no fault can be found with the said order,
and therefore it is stated that both, the Revisional Court, as well
as the High Court committed a serious error in reversing the
                                                                      E
same.

      4. On the contrary, Shri Ajay Veer Singh Jain, learned
counsel appearing for the State, has opposed the appeal,
contending that the Magistrate ought not to have refused to take
cognizance of the said offences and has committed a grave             F
error in acquitting the appellant, after taking note of the
statement of the prosecutrix which was recorded under Section
164 Cr.P.C. The said statement was recorded in great haste.
It is further submitted that, as the prosecutrix had appeared
before the Magistrate independently, without any assistance of        G
the police, her statement recorded under Section 164 Cr.P.C.
is not worth ·acceptance. Thus, no interference is called for. The
appeal is liable to be dismissed.

     5. We have considered the rival submissions made by the          H
    982     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A   learned counsel for the parties and perused the records.

       A three Judge bench of this Court in Jogendra Nahak &
  Ors. v. State of Orissa & Ors., AIR 1999 SC 2565, held that
  Sub-Section 5 of Section 164, deals with the statement of a
  person, other than the statement of an accused i.e. a
8
  confession. Such a statement can be recorded, only and only
  when, the person making such statement is produced before
  the Magistrate by the police. This Court held that, in case such
  a course of action, wherein such person is allowed to appear
C before the Magistrate of his own volition, is made permissible,
  and the doors of court are opened to them to come as they
  please, and if the Magistrate starts recording all their
  statements, then too many persons sponsored by culprits
  might throng before the portals of the Magistrate courts, for the
  purpose of creating record in advance to aid the said culprits.
D Such statements would be very helpful to the accused to get
  bail and discharge orders.

       6. The said judgment was distinguished by this Court in
  Mahabir Singh v. State of Haryana, AIR 2001 SC 2503, on
E facts, but the Court expressed its anguish at the fact that the
  statement of a person in the said case was recorded under
  Section 164 Cr.P.C. by the Magistrate, without knowing him
  personally or without any attempt of identification of the said
  person, by any other person.
F       7. In view of the above, ii is evident that this case is
  squarely covered by the aforesaid judgment of the three Judge
  bench in Jogendra Nahak & Ors. (Supra), which held that a
  person should be produced before a Magistrate, by the police
  for recording his statement under Section 164 Cr.P.C. The
G Chief Judicial Magistrate, Sirohi, who entertained the
  application and further directed the Judicial Magistrate,
  Sheoganj, to record the statement of the prosecutrix, was not
  known to the prosecutrix in the case and the latter also recorded
  her statement, without any attempt at identification, by any court
H officer/lawyer/police or anybody else.
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN                        983
           [DR. B.S. CHAUHAN, J.]

     8. In Sanjay Gandhi v. Union of India, AIR 1978 SC 514,            A
this court while dealing with the competence of the Magistrate
to discharge an accused, in a case like the instant one at hand,
held:

    " .... it is not open to the committal Court to launch on a         8
    process of satisfying itself that a prima facie case has
    been made out on the merits. The jurisdiction once vested
    in him under the earlier Code but has been eliminated
    now under the present Code. Therefore, to hold that he
    can go into the merits even for a prima facie satisfaction          C
    is to frustrate the Parliament's purpose in re-moulding
    Section 207-A (old Code) into its present non-discretionary
    shape. Expedition was intended by this change and this
    will be defeated successfully if interpretatively we hold that
    a dress rehearsal of a trial before the Magistrate is in
    order. In our view, the narrow inspection hole through which        D
    the committing Magistrate has to look at the case limits
    him merely to ascertain whether the case, as disclosed by
    the police report, appears to the Magistrate to show an
    offence triable solely by the Court of Session. Assuming
    the facts to be correct as stated in the police report, .... .the   E
    Magistrate has simply to commit for trial before the Court
    of Session. If, by error, a wrong section of the Penal Code
    is quoted, he may look into that aspect. If made-up facts
    unsupported by any material are reported by the police and
    a sessions offence is made to appear, it is perfe~tly open          F
    to the Sessions Court under Section 227 CrPC to
    discharge the accused. This provision takes care of the
    alleged grievance of the accused."

                                               (Emphasis added)         G

    9. Thus, it is evident from the aforesaid judgment that when
an offence is cognizable by the Sessions court, the Magistrate
cannot probe into the matter and discharge the accused. It is
not permissible for him to do so, even after considering the
                                                                        H
    984     SUPREME COURT REPORTS                [2012] 8 S.C.R.


A evidence on record, as he has no jurisdiction to probe or look
  into the matter at all. His concern should be to see what
  provisions of the Penal statute have been mentioned and in
  case an offence triable by the Sessions Court has been
  mentioned, he must commit the case to the Sessions Court and
B do nothing else.

        10. Thus, we are of the considered opinion that the
  Magistrate had no business to discharge the appellant. In fact,
  Section 207-A in the old Cr.P.C., empowered the Magistrate
C to exercise such a power. However, in the Cr.P.C. 1973, there
  is no provision analogous to the said Section 207-A. He was
  bound under law, to commit the case to the Sessions Court,
  where such application for discharge would be considered. The
  order of discharge is therefore, a nullity, being without
  jurisdiction.
D
        11. More so, ii was not permissible for the Judicial
  Magistrate, Sheoganj, to take into consideration the evidence
  in defence produced by the appellant as it has consistently
  been held by this Court that at the time of framing the charge,
E the only documents which are required to be considered are
  the documents submitted by the investigating agency alongwith
  the charge-sheet. Any document which the accused want to rely
  upon cannot be read as evidence. If such evidence is to be
  considered, there would be a mini trial at the stage of framing
F of chargl!. That would defeat the object of the Code. The
  provision about hearing the submissions of the accused as
  postulated by Section 227 means hearing the submissions of
  the accused on the record of the case as filed by the
  prosecution and documents submitted therewith and nothing
G more. Even if, in a rare case it is permissible to consider the
  defence evidence, if such material convincingly establishes that
  the whole prosecution version is totally absurd, preposterous
  or concocted, the instant case does not fall in that category.
  (Vide: State of Orissa v. Debendra Nath Padhi, AIR 2003 SC
  1512; State of Orissa v. Debendra Nath Padhi, AIR 2005 SC
H
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN                       985
           [DR. B.S. CHAUHAN, J.]

359; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., AIR           A
2005 SC 3512; Bharat Parikh v. C.B.I. & Anr., (2008) 10 SCC
109; and Rukmini Narvekar v. Vijaya Satardekar & Ors., AIR
2009 SC 1013)

       12. The court should not pass an order of acquittal by
                                                                       8
resorting to a course of not taking cognizance, where prima
facie case is made out by the Investigating Agency. More so,
it is the duty of the court to safeguard the right and interests of
the victim, who does not participate in discharge proceedings.
At the stage of application of Section 227, the court has to shift
the evidence in order to find out whether or not there is sufficient   C
ground for proceeding against the accused. Thus, appreciation
of evidence at this stage, is not permissible. (Vide: P. Vijayan
v. State of Kera/a & Anr., AIR 2010 SC 663; arid R.S. Mishra
v. State of Orissa & Ors., AIR 2011 SC 1103).
                                                                       D
     13. The scheme of the Code, particularly, the provisions
of Sections 207 to 209 Cr.P.C., mandate the Magistrate to
commit the case to the Court of Sessions, when the charge-
sheet is filed. A conjoint reading of these provisions make it
crystal clear that the committal of a case exclusively triable by      E
the Court of Sessions, in a case instituted by the police is
mandatory.

     The scheme of the Code simply provides that the
Magistrate can determine, whether the facts stated in the report       F
make out an offence triable exclusively, by the Court of
Sessions. Once he reaches the conclusion that the facts
alleged in the report, make out an offence triable exclusively
by the Court of Sessions, he must commit the case to the
Sessions Court.
                                                                       G
     14. The Magistrate, in e,xercise of its power under Section
190 Cr.P .C., can refuse to take cognizance if the material on
record warrants so. The Magistrate must, in such a case, be
satisfied that the complaint, case diary, statements of the
witnesses recorded under Sections 161 and 164 Cr.P.C., if              H
    986     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A any, do not make out any offence. At this stage, the Magistrate
  performs a judicial function. However, he cannot appreciate the
  evidence on record and reach a conclusion as to which
  evidence is acceptable, or can be relied upon. Thus, at this
  stage appreciation of evidence is impermissible. The
B Magistrate is not competent to weigh the evidence and the
  balance of probability in the case.

       15. We find no force in the submission advanced by the
  learned counsel for the appellant that the Judicial Magistrate,
C Sheoganj, has proceeded strictly in accordance with law laid
  down by this Court in various judgments wherein it has
  categorically been held that a Magistrate has a power to drop
  the proceedings even in the cases exclusively triable by the
  Sessions Court when the charge-sheet is filed by the police.
  She has placed very heavy reliance upon the judgment of this
D Court in Minu Kumari & Anr. v. State of Bihar & Ors., AIR 2006
  SC 1937 wherein this Court placed reliance upon its earlier
  judgment in Bhagwant Singh v. Commissioner of Police &
  Anr., AIR 1985 SC 1285 and held that where the Magistrate
  decides not to take cognizance and to drop the proceeding or
E takes a view that there is no sufficient ground for proceeding
  against some of the persons mentioned in the FIR, notice to
  informant and grant of being heard in the matter, becomes
  mandatory.

F       In the case at hand, admittedly, the Magistrate has not
    given any notice to the complainant before dropping the
    proceedings and, thus, acted in violation of the mandatory
    requirement of law.

       16. The application filed before the Chief Judicial
G Magistrate, Sirohi, has been signed by the prosecutrix, as well
  as by her counsel. However, there has been no identification
  of the prosecutrix, either by the said advocate or by anyone
  else. The Chief Judicial Magistrate, Sirohi, proceeded to deal
  with the application without identification of the prosecutrix and
H
 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN 987
           [DR. B.S. CHAUHAN, J.)

has no where mentioned that he knew the prosecutrix                   A
personally. The Judicial Magistrate, Sheoganj, recorded the
statement of the prosecutrix after she was identified by the
lawyer. There is nothing on record to show that she had
appeared before the Chief Judicial Magistrate, Sirohi or before
the Judicial Magistrate, Sheoganj, alongwith her parents or any       B
other person related to her. In such circumstances, the
statement so recorded, loses its significance and legal sanctity.

      17. The record of the case reveals that the Chief Judicial
Magistrate, Sirohi, passed an order on 9.4.1994. The
prosecutrix appeared before the Judicial Magistrate, Sheoganj,        C
at a place far away from Sirohi, on the same date with papers/
order etc. and the said Judicial Magistrate directed the public
prosecutor to produce the Case Diary on the same date at 4.00
P.M. The case Diary could not be produced on the said day.
Thus, direction was issued to produce the same in the morning         D
of the next day. The statement was recorded on 10.4.1997. The
fact-situation reveals that the court proceeded with utmost
haste and any action taken so hurridly, can be labelled as
arbitrary.
                                                                      E
      18. The original record reveals that the prosecutrix had
lodged the FIR herself and the same bears her signature. She
was medically examined the next day, and the medical report
also bears her signature. We have compared the
aforementioned signatures with the signatures appearing upon          F .
the application filed before the Chief Judicial Magistrate, Sirohi,
for recording her statement under Section 164 Cr.P.C., as also
with, the signature on the statement alleged to have been made
by her under Section 164 Cr.P.C., and after examining the
same, prima facie we are of the view that they have not been          G
made by the same person, as the two sets of signatures do
not tally, rather there is an apparent dissimilarity between them.

     19. Evidence of identity of handwriting has been dealt with
by three Sections of the Indian Evidence Act, 1872 (hereinafter
referred to as the 'Evidence Act') i.e. Sections 45, 4 7 and 73.      H
    988      SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A Section 73 of the said Act provides for a comparison made
  by the Court with a writing sample given in its presence, or
  admitted, or proved to be the writing of the concerned person.
  (Vide: Ram Chandra & Anr. v. State of Uttar Pradesh, AIR
  1957 SC 381; lshwari Prasad Misra v. Mohammad Isa, AIR
B 1963 SC 1728; Shashi Kumar Banerjee & Ors. v. Subodh
  Kumar Banerjee, AIR 1964 SC 529; Fakhruddin v. The State
  of Madhya Pradesh, AIR 1967 SC 1326; and State of
  Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100).

       20. In Murari Lal v. State of Madhya Pradesh, AIR 1981
C SC 363, this Court, while dealing with the said issue, held that,
  in case there is no expert opinion to assist the court in respect
  of handwriting available, the court should seek guidance from
  some authoritative text-book and the courts own experience and
  knowledge, however even in the absence of,the same, it should
D discharge its duty with or without expert, with or without any other
  evidence.

       21. In A. Nee/alohithadasan Nadar v. George Mascrene
   & Ors., 1994 Supp. (2) sec 619, this Court considered a case
E involving an election dispute regarding whether certain voters
  had voted more than once. The comparison of their signatures
  on the counter foil of the electoral rolls with their admitted
  signatures was in issue. This Court held that in election matters
  when there is a need of expeditious disposal of the case, the
F Court takes upon itself the task of comparing signatures, and
  thus it may not be necessary to send the said signatures for
  comparison to a handwriting expert. While taking such a
  decision, reliance was placed by the Court, on its earlier
  judgments in State (Delhi Administration) v. Pali Ram, AIR
G 1979 SC 14; and Ram Pyarelal Shrivastava v. State of Bihar,
  AIR 1980 SC 1523.

        22. In 0. Bharathan v. K. Sudhakaran & Anr., AIR 1996
  SC 1140, this Court considered a similar issue and held that
  the facts of a case will be relevant to decide where the Court
H will exercise its power for comparing the signatures and where
  AJAY KUMAR PARMAR v. STATE OF RAJASTHAN 989
            [DR. B.S. CHAUHAN, J.]

it will refer the matter to an expert. The observations of the         A
Court are as follows:

     'The learned Judge in our view was not right... ... taking upon
     himself the hazardous task of adjudicating upon the
     genuineness and authenticity of the signatures in question        8
     even without the assistance of a skilled and trained person
     whose services could have been easily availed of.
     Annulling the verdict of popular will is as much a serious
     matter of grave concern to the society as enforcement of
     laws pertaining to criminal offences, if not more. Though it      C
     is the province of the expert to act as Judge or jury after a
     scientific comparison of the disputed signatures with
     admitted signatures, the caution administered by the Court
     is to the course to be adopted in such situations could not
     have been ignored unmindful of the serious repercussions
     arising out of the decision to the ultimately rendered."          D

    (See also: La/it Popli v. Canara Bank & Ors., AIR 2003
SC 1795; Jagjit Singh v. State of Haryana & Ors., (2006) 11
SCC 1; Thiruvengada Pillai v. Navaneethammal, AIR 2008
SC 1541; and G. Someshwar Rao v. Samineni Nageshwar                    E
Rao & Anr., (2009) 14    sec  677).

      23. The opinion of a handwriting expert is fallible/liable to
error like that of any other witness, and yet, it cannot be brushed
aside as useless. There is no legal bar to prevent the Court
                                                                       F
from comparing signatures or handwriting, by using its own eyes
to compare the disputed writing with the admitted writing and
then from applying its own observation to prove the said
handwritings to be the same or different, as the case may be,
but in doing so, the Court cannot itself become an expert in this      G
regard and must refrain from playing the role of an expert, for
the simple reason that the opinion of the Court may also not
be conclusive. Therefore, when the Court takes such a task
upon itself, and findings are recorded solely on the basis of
comparison of signatures or handwritings, the Court must keep
in mind the risk involved, as the opinion formed by the Court          H
    990          SUPREME COURT REPORTS                 (2012] 8 S.C.R.


A may not be conclusive and is susceptible to error, especially
  when the exercise is conducted by one, not conversant with the
  subject. The Court, therefore, as a matter of prudence and
  caution should hesitate or be slow to base its findings solely
  upon the comparison made by it. However, where there is an
B opinion whether of an expert, or of any witness, the Court may
  then apply its own observation by comparing the signatures, or
  handwritings for providing a decisive weight or influence to its
  decision.

C        24. The aforesaid discussion leads to the following
    inferences:

          I.      In respect of an incident of rape, an FIR was lodged.
                  The Dy.S.P. recorded the statement of the
                  prosecutrix, wherein she narrated the facts alleging
D                 rape against the appellant.

          II.     The prosecutrix, appeared before the Chief Judicial
                  Magistrate, Sirohi, on 9.4.1997 and lodged a
                  complaint, stating that the police was not
                  investigating the case properly. She filed an
E
                  application that her statement be recorded under
                  Section 164 Cr.P.C.

          Ill.    The prosecutrix had signed the said application. It
                  was also signed by her lawyer. However, she was
F                 not identified by any one.

          IV.     There is nothing on record to show with whom she
                  had appeared before the Court.

          V.      From the signatures on the FIR and Medical
G                 Report, it appears that she is not an educated
                  person and can hardly form her own signatures.

          VI.     Thus, it leads to suspicion regarding how an 18
                  year old, who is an illiterate rustic villager, reached
H
AJAY KUMAR PARMAR v. STATE OF RAJASTHAN                     991
          [DR. B.S. CHAUHAN, J.]

           the court and how she knew that her statement           A
           could be recorded by the Magistrate.

   VII.    More so, she appeared before the Chief Judicial
           Magistrate, Sirohi, and not before the area
           Magistrate at Sheoganj.
                                                                   B
   VIII.   The Chief Judicial Magistrate on the same day
           disposed of the application, directing the Judicial
           Magistrate, Sheoganj, to record her statement.

   IX.     The prosecutrix appeared before the Judicial            c
           Magistrate, Sheoganj, at a far distance from Sirohi,
           where she originally went, on 9.4.1997 itself, and
           her statement under Section 164 Cr.P.C. was
           recorded on 10.4.1997 as on 9.4.1997, since the
           public prosecutor could not produce the Case            D
           Diary.

   x.      Signature of the prosecutrix on the papers before
           the Chief Judicial Magistrate, Sirohi and Judicial
           Magistrate, Sheoganj, do not tally with the
           signatures on the FIR and Medical Report. There         E
           is apparent dissimilarity between the same, which
           creates suspicion.

   XI.     After completing the investigation, charge-sheet
           was filed before the Judicial Magistrate, Sheoganj,     F
           on 20.3.1998.

   XII.    The Judicial Magistrate, Sheoganj, vide order
           dated 25.3.1998, refused to take cognizance of the
           offences on the basis of the statement of the
                                                                   G
           prosecutrix, recorded under Section 164 Cr.P.C.
           The said court erred in not taking cognizance on this
           count as the said statement could not be relied
           upon.

   XIII.   The revisional court as well as the High Court have     H
    992      SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A              rightly held that the statement under Section 164
               Cr.P.C. had not been recorded correctly. The said
               courts have rightly set aside the order of the Judicial
               Magistrate, Sheoganj, dated 25.3.1998, not taking
               the cognizance of the offence.
B
          XIV. There is no provision analogous to Section 207-A
               of the old Cr.P .C. The Judicial Magistrate,
               Sheoganj, should have committed the case to the
               Sessions court as the said application could be
               entertained only by the Sessions Court. More so, it
c              was not permissible for the court to examine the
               weight of defence evidence at that stage. Thus, the
               order is insignificant and inconsequential being
               without jurisdiction.

D      25. In view of the above, we do not find any force in the
  appeal. It is, accordingly, dismissed. The judgment and order
  of the revisional court, as well as of the High Court is upheld.
  The original record reveals that in pursuance of the High
  Court's order, the case has been committed by the Judicial
E Magistrate, Sheoganj, to the Court of Sessions on 23.4.2012.
  The Sessions Court is requested to proceed strictly in
  accordance with law, expeditiously and take the case to its
  logical conclusion without any further delay. We make it clear
  that none of the observations made herein will adversely affect
F either of the parties, as the same have been made only to
  decide the present case.

    K.K.T.                                      Appeal dismissed.