M.L. Jain, J.
1. This application under Section 432 Cr.P.C. has arisen in the following circumstances:
2. The petitioners are doctors, who were on duty in the Jawahar Lal Nehru Hospital, Ajmer, on the night intervening 24th and 25th February, 1973. It was alleged that they committed rape upon Miss Francis Anthony who was a trainee nurse aged 20 years. The police after investigation challaned the case on 13-9-73 under Section 354 IPC because they found that no case either under Section 376 or 342 IPC was made out. During the trial under Section 354 I.P.C. Miss Francis Anthony was examined in the court of the Magistrate, Ajmer on 20-8-75. She maintained that she was ravished by the accused. When her examinalion-in-chief was still going on, the A.P.P. submitted to the court that the case was under Section 376 IPC and therefore, the court could not proceed with the trial and could instead commit the case to the court of session for trial. The trial magistrate committed the case to the court of session by his order dated 20-8-75. The learned Additional Sessions Judge, Ajmer framed charges under Sections 376 and 347 IPC against the accused on 29-8-75.
3. By this application the petitioners pray that the order of commitment and the charges framed by the sessions judge be quashed and the lower court be directed to proceed with the trial under Section 354 IPC only. It was pointed out that upon medical examination, the girl was found to be virgin as her hymen had not ruptured and further that the clothes of the girl and the accused except the bed sheet were found negative for semen and spermatozoa. The swab of Miss Francis Anthony were also reported to be negative for semen and spermatozoa.
4. Whatever be the merits of the case, I will not embark upon that inquiry. The only question that falls for consideration at this stage is whether the order of commitment is illegal.
5. The learned Counsel for the petitioners contends that according to Section 484. of the Code of Criminal Procedure. 1973, the trial pending on the date of commencement of the new Code has to be carried on in accordance with the provisions contained in the repealed Code, in this case under Section 251A, it being a warrant case. But under Sec-lion 347 Cr.P.C. of the old Code, (now Section 323) if in an inquiry or a trial before a magistrate it appears to him at any stage of the proceedings, before the signing of the judgment that the case is one which ought to be tried by the court of session, he shall commit it under the provisions 'hereinbefore contained' It is therefore absolutely clear that where the magistrate has at any stage reasons to think that the case ought to be tried by the court of session, then he is required to commit the case to that court. The learned magistrate in his impugned order has stated that Miss Francis Anthony has stated on oath that she was ravished by the two accused persons. That was her statement also under Section 161 Cr.P.C. In spite of the fact that her hymen was found intact, the learned Magistrate was of the view that the condition of the hymen cannot rule out a case of rape. He has referred to the observations of Mode in his Medical Jurisprudence and Toxicology that intercourse is possible in pite of the hymen being intact. The learned magistrate, for these reasons, has directed commitment of the accused for trial by the court of session. In such a case he could no more proceed with the trial. He has thus, acted properly under the provisions of Section 347 Cr.P.C. (Old).
6. The learned Counsel then, contended that if the magistrate was of the view that it was a case exclusively triable by a court of session, then, he should have proceeded under Section 207A under chapter XVIII relaling to committal inquiries. He should have allowed cross-examination of Mst. Francis, should have examined all the persons produced by the prosecution as witnesses to the actual commission of the offence, considered all the documents examined the accused and heard both the sides. It was only when he had followed this procedure contained in Sub-sections (7) to (10) of Section 207 A that he could order commitment; the provisions of Chapter XVIII being mandatory.
7. I have considered over this objection. It overlooks the proviso to Clause (a) of Sub-section (2) of Section 484 Cr.P.C. (New) according to which an inquiry under Chapter XVIII if pending at the commencement of the new Code shall be dealt with and disposed of in accordance with the provisions of the New Code. Now. it is obvious that even if on 1-4-74 i.e. at the commencement of the new Code, any inquiry under Chapter XVIII were pending before the magistrate, he was to follow the procedure provided in Section 209 in Chapter XVI (New). Therefore, the conclusion is obvious that the procedure provided under the new Code will alone be followed even where the magistrate decides as in this case, to commit a case in which any trial is pending at the commencement of the 1973 Code. The procedure adopted by the learned magistrate is thus quite in accordance with law.
8. I therefore, see no force in the contentions advanced on behalf of the petitioners and hereby dismiss this petition.