Short Note : 1. A charge-sheet for an offence under section 376 read with section 511 of the Indian Penal Code, was filed by the police against the petitioner. Learned trial Magistrate after hearing the parties, observed that the offence was under section 354 of the Indian Penal Code and not under section 376 read with section 511 of the Indian Penal Code. On 6.6.1977 the learned Magistrate observed that the offence against the accused petitioner was well within his jurisdiction and not one which was exclusively triable by the Court of Session. In revision, the Session Judge, set aside the order dated 6.6.1977 and directed the judicial Magistrate to follow the procedure under section 209 of the Code and commit the case to the Court of Session. 2. Under the new Code the procedure for commitment of a case to the Court of Session when an offence is triable exclusively by it has been changed. The whole thing centre's round the meaning of the words and it appears to the Magistrate that the offence is triable exclusively by the Court of Session in section 209 of the Code. True it is that at that stage the Magistrate is not required to go into the merits of the case and weigh the evidence. It is clear that the Magistrate, to find out whether the case is triable exclusively by the Court of Session has to look into and examine the police report and the papers. This looking into would necessarily require his examining of papers with a view to find out whether a case triable exclusively by the Court of Session is made out. The words it appears do not mean that the Magistrate has to mechanically act, but section 209 of the Code casts an obligation upon the Magistrate to commit a case to the Court of Session only if be finds that it is triable exclusively by the Court of Session. Now, while examining the case in that light, if he finds that the police report and the papers do not disclose an offence which is triable exclusively by the Court of Session, then obviously it is the Magistrate himself who has to proceed with the case. Learned Sessions Judge was certainly right in observing that the judicial Magistrate cannot go into the merits of the case and weigh the evidence. Learned Sessions Judge was certainly right in observing that the judicial Magistrate cannot go into the merits of the case and weigh the evidence. As it appears, he went wrong in not considering as to what after all is expected of a judicial Magistrate when he is examining the police report and the papers. In the opinion of this Court, the Magistrate will have a jurisdiction to see whether the police report and the papers as have been produced prima-facie disclose an offence which is triable exclusively by a Court of Sessions while doing so, he certainly cannot appreciate or evaluate the evidence which is the function of trial Court. Munshi and Others vs. State of M.P. 1975 JLJ 77 and Tarun Pratap Singh vs. Paduman Singh and Another, 1977 (1) WN 308 relied on. 3. As it is, between an offence under section 376 read with section 511 of the Indian Penal Code and an offence under section 354 of the Indian Penal Code, there is a thin line. The position has to be considered and examined in the light of what has been stated by the witnesses. Accepting what has been stated by the witnesses if an offence, triable exclusively by, the Court of Session is made out, the Magistrate has no option but to commit the case. If, however, he feels conversely, than has no option but to proceed with the case. Learned Session Judge, merely considered the question that the judicial Magistrate had no jurisdiction to weigh and evaluate the evidence and to that extent he certainly was right. The grievance of the learned counsel for the petitioner was that it is not a case of weighing or evaluating the evidence, but even accepting the evidence as it is, an offence under section 376 read with section 511, of the Indian Penal Code, is not made out because at best, it would merely show a preparations and not an attempt. In view of the fact that according to the Sessions Judge, the judicial Magistrate had no jurisdiction he did not at all apply his mind to this question. After going through the evidence, as was put forth if an offence under section 376, read with section 511 of the Indian Penal Code is not made out, open it could not be said that it was a matter of weighing or evaluating the evidence. After going through the evidence, as was put forth if an offence under section 376, read with section 511 of the Indian Penal Code is not made out, open it could not be said that it was a matter of weighing or evaluating the evidence. At this stage, this Court would refrain from making any observation on that question. Learned Session Judge has not considered that question at all and this Court expressing any opinion might prejudice either of the two parties. Case remanded to Sessions Judge, Kartar vs. State of M.P. 1972 JLJ 28, Aminuddin vs. State, 1960 JLJ 157 and State vs. Babulal, 1960 JLJ 129 referred to. Revision allowed.