JUDGMENT I.A. Ansari, J. 1. This criminal petition is directed against the judgment and order, dated 25.02.2009, passed, in Criminal Appeal No. 94/2008, by the learned Sessions Judge, Kokrajhar, whereby the learned Sessions Judge, Kokrajhar, while allowing the appeal, and setting aside the judgment and order, dated 25.02.2009, aforementioned, remanded the case to the Court of learned Additional Chief Judicial Magistrate, Kokrajhar, directing him to deal with the case as per provisions of law. The case of the complainant may, in brief, be described thus: (i) Accused Sazibul Islam is cousin of the complainant LB, who was a college student. On 13.08.2001, when LB was a student of a college, accused enticed her and took her from her college to Srirampur for solemnizing his marriage with her. One Samez Ali also accompanied them as a witness. Thereafter, LB was forcibly taken by accused Sazibul Islam to Coochbihar and she was kept there in a hotel, where accused Sazibul forcibly had sexual intercourse with her. After she had been put to forcible sexual intercourse, when she was crying, accused Sazibul took her signature on a marriage registration form. As a result of the sexual intercourse, which the accused so had with her, LB became pregnant and, on 24.09.2001, accused took her to Coochbihar, where she was aboned. Thereafter, accused Sazibul, instead of marrying her, solemnized his marriage with another girl, on 20.12.2000, at Dhubri. LB, then, lodged a complaint making the allegations as aforementioned and, on 26.12.2001, Complaint Case No. 494C/2002 was registered, under Sections 420, 366, 313, 312, 493' and 506, IPC, against the accused-petitioner on the basis of the said complaint. The explanation for the delay, in making the complaint belatedly was that she was misguided and there was none to help her and, hence, there was delay in lodging the complaint. (ii) Having recorded the statements of the complainant and her witnesses, the learned Chief Judicial Magistrate, Dhubri, transferred the case, for disposal, in accordance with law, to the learned Additional Chief Judicial Magistrate, Kokrajhar, who, in turn, observed, in his order, dated 23.04.2003, that though the complainant in her complaint as well as in her statement alleged that she been kidnapped by the accused by playing fraudulent enticement and he had committed forcible sexual intercourse with her, yet her statement disclosed that she was a consenting party for having cohabitation and sexual relation with the accused. The learned Additional Chief Judicial Magistrate, therefore, recorded that he found no material to substantiate the complainant's allegation of commission of offence under Sections 366/376, IPC. On the conclusion, so reached, the learned Additional Chief Judicial Magistrate took cognizance, on 23.04.2003, of offences under Sections 417/494, IPC against the accused and issued process accordingly. (iii) After recording evidence before charge, the learned trial Court framed charge against the petitioner under Sections 417 and 493 IPC. To the charges so framed, the accused pleaded not guilty. (iv) In support of her case, the complainant examined herself and two other witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of denial. The accused also adduced evidence by examining one witness. Having held the accused guilty of an offence under Section 417, IPC, the learned trial Court convicted him accordingly and sentenced him to suffer rigorous imprisonment for six months and pay fine of Rs. 3,000/and, in default of payment of fine, suffer rigorous imprisonment for two months with further direction that the fine shall, if realized, be paid to the complainant as compensation. (v) Aggrieved by his conviction and the sentence passed against him the accused-petitioner preferred an appeal, which has been allowed by the learned appellate Court as indicated above, but sent the case, on remand, for disposal, in accordance with law, to the learned trial Court as mentioned above. Dissatisfied with what has been done by the learned appellate Court, the accused has filed this petition. 2. I have heard Mr. M. Dutta, Learned Counsel, appearing on behalf of the petitioner, and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 3. While considering the present petition, it needs to be noted that in her evidence, PW 1 has deposed that the accused, on 13.08.2001, took her to Coochbihar by promising to marry her and put her, at Coochbihar, in Tripti hotel, where he had sexual intercourse with her 'against her will' twice and, when she started crying, then, the accused obtained her signature on a marriage registration form and told her that she had become his wife. The evidence of PW 1 that the accused had sexual intercourse with her 'against her will' twice; at the said hotel, was never disputed by the accused. The consequence was that the evidence of PW 1 that she had been, against her will, subjected to sexual intercourse by the accused twice, at the said hotel, remained wholly unchallenged and undisputed. 4. In the face of the above admitted evidence of the complainant, there ought to have been a charge under Section 376, IPC. However, as already indicated above, the accused was put to trial for having allegecgy committed offence under Sections 417 and 493, IPC. 5. What, now, needs to be noted is that in her complaint, the complainant, in no uncertain words, stated that the accused had, in a hotel, at Coochbihar, sexual intercourse with her 'against her will'. Even in her statement recorded under Section 200 Cr.PC, she repeated the statement given by her in her complaint to the effect that she had been subjected to sexual intercourse at the said hotel, at Coochbihar, 'against her will'. In such circumstances, the order, which has been passed by the learned Additional Chief Judicial Magistrate, Kokrajhar, on 23.04.2003, taking the view that the statements of the complainant and her witnesses do not make out a case under Sections 366 and 376, IPC is wholly misconceived and untenable in law, because the reason assigned for taking the view that no case under Sections 366/376, IPC has been made out was that according to the learned Additional Chief Judicial Magistrate, her statement shows that she was a consenting party to the sexual intercourse. 6. I may pause here to refer to Section 209, Cr.PC, which is to committal of a case to the Sessions Court for trial. Section 209, Cr.PC lays down that when a case is instituted on a police report or otherwise and the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of (Sessions, he shall commit the case to the Court of Sessions accomplying with the provisions of Section 207 and 208, as the case may be, and that subject to the provisions of the Code relating to bail, the Magistrate shall remand the accused to custody until such commitment has been made. 7. 7. At the stage of committing the case, in terms of Section 209, a Magistrate is not empowered to decide the credibility of the statement made by the complainant and the witnesses, for, it is not for him, at that stage, to decide if the statements are believable or the Magistrate has the obligation to assume that the statements made are true and, then, decide whether the same make out a case exclusively triable by the Court of Sessions or not. 8. A committal Magistrate, in a case instituted on complaint, has to merely determine if the allegations, made by the complainant and his witnesses disclose commission of an offence triable exclusively by the Court of Session. It is not at all open to him to examine as to whether the statements can or should be believed or not. With the change, which has been introduced into the Criminal Procedure Code, 1973, the scheme of committal proceeding, which had existed in the earlier Code, has been done away with. The Magistrate cannot, therefore, while committing the case, in terms of Section 209, Cr PC, determine the merit or credibility of the statements, which have been recorded by him. The change by the new Code is, in a way, intended to expedite the process of disposal of the case. In no uncertain words, held the Supreme Court, in Sanjay Gandhi v. Union of India and others, reported in (1978) 2 SCC 39 , at paragraph 3, that the narrow inspection hole, through which 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. If the Magistrate finds, assuming the facts stated in the police reports to be correct, that the offence is plainly under Section 201, IPC, then, the Magistrate has simply to commit the case before the Court of Session for trial. However, if, by error, a wrong section of the Penal Code is quoted, the Magistrate may look into such an aspect. The relevant observations, made in Sanjay Gandhi (supra), read as under: Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remoulding Section 207 A (Old code) into its present non-discretionary shape. The relevant observations, made in Sanjay Gandhi (supra), read as under: Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remoulding Section 207 A (Old code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully if interpretative we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole, through which the committing Magistrate has to look at the case, limits him merely to ascertain whether the case, as disclosed by the police report, appeal's 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, if that the offence is plainly under Section 201, IPC, the 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 the aspect. 9. Though the observations, made in the case of Sanjay Gandhi (supra), is in respect of a case, which had been investigated and charge-sheet was submitted by the police, the principle, governing commitment of the case, under Section 209, to the Court of Session remains same in the complaint cases too. 10. In the case at hand as already pointed out above when the statement of the complainant, made by her in here complaint, her statement made under Section 200, Cr.PC and the statements of her witnesses, recorded under Section 202, Cr.PC, are dispassionately read and assumed to be true, there can be no escape from the conclusion that as in her statement, the complainant had made a statement to the effect that the accused had, as indicated above, sexual intercourse with her 'against her will', a case against the accused, under Section 376, IPC, had been made out. 11. 11. In the present case, the learned Additional Chief Judicial Magistrate, Kokrajhar, contrary to the position of law, as indicated above, took up on himself the responsibility to decide the question as to whether the complainant's statements made to the effect that she had been subjected to sexual intercourse by the accused-petitioner against her will shall or shall not be believed and having come to the conclusion that her statements cannot be believed and she must be treated to be a consenting party, no case, under Section 366 or 376, IPC, had been made out, did not commit the case to the Court of Sessions in terms of the provisions contained in this regard under Section 209, Cr.PC, though, in the facts and attending circumstances of the present case, he had no authority or power to determine the veracity of the statements of the complainant and/or veracity or truthfulness of the statements of the complainant's witnesses and/or hold as to whether the statements made by them were or were not believable. 12. The learned Sessions Judge, therefore, committed no error, legal or factual, in setting aside the impugned judgment of conviction, because the trial of the petitioner was wholly without jurisdiction, for, in terms of the provisions of Section 461(1), Cr.PC, when a Magistrate tries an offender if he is not empowered by law to try him, then, such an irregularity shall vitiate the trial itself. The trial of the accused-petitioner, by the learned trial Court, was clearly without jurisdiction and the conviction of the accused and the sentence passed against him ought to have been treated, and were rightly treated, as without jurisdiction and set aside by the learned appellate Court. 13. Situated thus, this Court does not find any merit in this criminal petition. This criminal petition, therefore, fails and the same shall accordingly stand dismissed. 14. Let the accused surrender, forthwith, in the Court of learned Additional Chief Judicial Magistrate, Kokrajhar. Send back the LCR. Petition dismissed