JUDGMENT : R.N. Misra, J. - This is an application in revision against the order dated 4.9.1967 passed by the learned Sessions Judge of Bolangir-Kalahandi purporting to exercise jurisdiction u/s 437, Code of Criminal Procedure. 2. The facts of the case may be shortly stated. One Subhagi Dei (opposite party) was stated to have been carrying. On 29-5-1964, according to the prosecution case, the Plaintiff assaulted her by giving kicks and fist blows on her abdomen and back. On 30-5-1964 it is alleged that there was miscarriage. On 30-6-1964 a First Information Report was given wherein, however, there was no reference made to the fact of miscarriage. On 15-8-1964, the investigation got concluded with a final report. In the meantime, however, on 2-7-1904, the opposite party came with a petition of complaint alleging commission of offence under Sections 323, 504 and 448, Indian Penal Code. On the basis of the said petition of complaint, Complaint Case No. 4 of 1964 was registered in Court. In the said petition of complaint there was no allegation about miscarriage. On 21-9-1964, there was a petition of complaint filed in Court again on the basis of which cognizance was taken for an offence u/s 316, Indian Penal Cede. On this occasion the entire allegation was confined about the abortion. This became the subject matter of Complaint Case No. 12 of 11:16:1: (T.R. 363 of 1964). On 4-3-1965, the following order was passed by the learned Magistrate: Complainant present. Accused present. Seen the petition of lawyer for accused (Plaintiff filed in C.C. 4/1964). As for the same occurrence one police case has been instituted against accused, this case is submitted to S.D.M. for perusal and further order for trial. Complainant and accused to appear before S.D.M. On 19-03-1965. On 12-6-1955, the following order appears to have been passed by the learned S.D.O.: This case will be tried jointly with Complaint Case No. 4 of 64. Parties present. Accused as before. Put up with Complaint Case No. 4 of 64 on 19-7-1965 3. Thereafter both the cases came up for consideration before the learned Magistrate. On 12-6-1955, the following order appears to have been passed by the learned S.D.O.: This case will be tried jointly with Complaint Case No. 4 of 64. Parties present. Accused as before. Put up with Complaint Case No. 4 of 64 on 19-7-1965 3. Thereafter both the cases came up for consideration before the learned Magistrate. He, by his order dated 13-9-1966, took up for consideration the question of commitment for the offence u/s 316, Indian Penal Code as also the framing of charge for the offences under Sections 323, 448 and 504, Indian Penal Code, and after examining the materials placed before him came to hold in the following way: As such, I hold that prosecution has failed to find out a prima facie case u/s 316, Indian Penal Code and there is no evidence for framing charge under Sections 323, 504 & 448, Indian Penal Code and hence accused Biranchi Gour is discharged. Against the aforesaid order of the learned Magistrate an application u/s 437, Code of Criminal Procedure was filed before the learned Sessions Judge in Criminal Revision No. 9 of 1966. The learned Sessions Judge allowed the application and came to hold: The impugned order of the learned Magistrate improperly discharging the accused Biranchi Gour is set aside. The learned Magistrate is directed to frame charge against the accused as above indicated and commit him to the Court of Sessions for trial. This order of the learned Sessions Judge has now been impugned in the revision petition. 4. Mr. Mohanty for the Plaintiff contends that the impugned order of the learned Sessions Judge is liable to be quashed on account of the fact that the first two documents relating to the incident, namely, the F.I.R. dated 3-6-1964 and the petition of complaint filed in Court on 2-7-1964 did not indicate the allegation of miscarriage. If miscarriage was true, in these two documents which were meant to initiate proceedings against the Plaintiff there could have been no omission of it. He further relied upon the fact that Section 316, Indian Penal Code would not apply to the facts of the present case. If miscarriage was true, in these two documents which were meant to initiate proceedings against the Plaintiff there could have been no omission of it. He further relied upon the fact that Section 316, Indian Penal Code would not apply to the facts of the present case. That section reads thus: Whoever does any act under such circumstance, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Admittedly this section punishes offence against children in the womb where the pregnancy has advanced beyond the stage of quickening and where the death is caused after the quickening and before the birth of the child. As Ratanlal puts it, If a person strikes a pregnant woman and thereby causes the death of her quick unborn child, he will be guilty of the offence here defined, if the blow was intended by him to cause the woman's death or was one which he knew or had reason to behave to be likely to cause it. The ingredients which would be necessary to establish an offence u/s 316, Indian Penal Code would be (1) that the woman was quick with the child, (2) that the accused did an act to cause the death of such child, (3) that the circumstances, under which such act was done, were such as to make the accused guilty of culpable homicide, if death had been caused, and (4) that such act did cause the death of the quick unborn child. The emphasis, therefore, appears to be that the unborn child should have already been quick inside the womb of the mother. In the present case there is a medical certificate on record given by the Doctor who has been examined as Court witness No. 2. The material portion of the said certificate is to the following effect: Slightly enlarged uterus. Signs of incomplete abortion. Period of gestation is about ten to twelve weeks time. The Doctor, C.W. 2 made the following statement in Court: Ouickening of child occurs generally within 14th to 18th weeks of conception. In this case the patient was not quick with the child. I can definitely say this. Signs of incomplete abortion. Period of gestation is about ten to twelve weeks time. The Doctor, C.W. 2 made the following statement in Court: Ouickening of child occurs generally within 14th to 18th weeks of conception. In this case the patient was not quick with the child. I can definitely say this. The learned Magistrate referring to the evidence of the Doctor stated, Dr. J. Negi, Court witness No. 2, who had examined p.w. 1 and treated her for seven days states that injury found over back and upper part of right scapula of p.w. 1 is not at all concerned with abortion and cannot be a cause for abortion. Then abortion according to him can be caused due to excessive exercise, long distance walk, exertion. ouickening of child occurs generally within 14th to 18th weeks of conception and p.w. 1 was not quick with child when she was examined by him. After taking into account this evidence and other features available on the record the learned Magistrate discharged the Plaintiff. The learned Sessions, Judge reassessed the evidence and relying upon the principles indicated in K.P. Raghavan v. M.H. Abbas 1967 S.C.D. 849, about the powers of the committing Court, allowed the application. 5. Mr. Mohanty contends that this is a case where the order of discharge should not have been interfered with. According to him, what is most material for maintaining a prosecution u/s 316, Indian Penal Code is that there must have been a quick unborn child. There is not much material on record on this aspect of the case apart from the evidence of the Doctor. The evidence of the Doctor has already been indicated. On the basis of such evidence there is absolutely no possibility of a conviction being sustained. He further contends that the special feature in this case, namely, absence of allegation of abortion or miscarriage in the F.I.R. and the petition of complaint which came to Court within 4 days and a month and 2 days respectively after the occurrence gives an impression that the subsequent allegation which was made on 21-9-1964 was connoted. The medical certificate is contemporaneous and therein there is a statement that the conception was only about 10 weeks old. 6. Mr. Kanungo, learned Counsel for the opposite party, contends that the committing Magistrate is not to appreciate evidence. The medical certificate is contemporaneous and therein there is a statement that the conception was only about 10 weeks old. 6. Mr. Kanungo, learned Counsel for the opposite party, contends that the committing Magistrate is not to appreciate evidence. He is only to find out whether a prima facie case is made out. The present case is one in which the learned Magistrate was exercising jurisdiction u/s 209, Code of Criminal Procedure and as such he should not have proceed to usurp the role of a trying Court by appreciating and disbelieving the evidence. 7. After hearing the learned Counsel on either side at length I conclude that this is a case where it is clear that if a trial takes place it is almost impossible that there can be a conviction. As was indicated by their Lordships of the Supreme Court in Thakur Ram v. State of Bihar 1966 S.C.D. 676, an express order of discharge is contemplated only in a case where the Magistrate comes to the conclusion that the act alleged against the accused does not amount to any offence at an and, therefore, no question of trying by either himself or any other Court arises. On the evidence of the Doctor and the absence of the ingredients which are required to prove the offence, it must be held that there is little scope in the present case to succeed even if it is sent up for trial. 8. About 5? years are already lost and it is difficult at this length of time to think of a trial and bring evidence on record. Taking an over-an picture of an these aspects I would accept the submission made by Mr. Mohanty that there would be no purpose in upholding the order of the learned Sessions Judge by which he vacated the order of the learned Magistrate. The conduct of the prosecution in not revealing anything about the present allegation in the F.I.R. and the petition of complaint is indeed a telling feature against it. I would adopt the principle indicated by Ahmad, C.J. in Padma Charan Das Vs. Netrananda Sahu and on the aforesaid conclusions of mine allow this revision, vacate the order of the learned Sessions Judge and restore that of the learned Magistrate.