Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7143 of 2010 =========================================================== Mahendra Ram son of Sri Bahadur Ram, Resident of Village Kolluaha Thikha, P.S. Purniha, Distt-Sheohar .... .... Petitioner/s Versus 1. State Of Bihar 2. Sunita Devi D/O Bigar Ram Resident of Village-Kolluaha Thikha, P.S. Purniha, Distt-Shohar at present wife of Bijay Ram resident of Dumri, P.S. Majorganj, Distt-Sitamarhi. .... .... Opposite Party/s =========================================================== Appearance : For the Petitioner/s : Mr. Sanjeet Kumar, Adv For the Opposite Party No.2 : Mr. Girindra Mohan Thakur For the State : Dr. Mayanand Jha, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT Date: 27-02-2012 Petitioner Mahendra Ram has challenged the order dated 13.1.2010 passed by Sri Rakesh Kumar, Judicial Magistrate, 1st Class, Sheohar at Sitamarhi in Complaint Case No. 127 of 2006 (Sunita Devi v. Mahendra Ram) whereby and whereunder he has been summoned to face trial for an offence punishable under [STATUTE] . 2. The matter of controversy arose on the basis of complaint petition bearing no. 127/2006 filed by O.P. No.2 Sunita Devi before SDJM, Sheohar at Sitamarhi (Annexure-1) against the petitioner, Mahendra Ram and other putting an allegation that on 17.08.2006 at about 7:30 P.M. at Village-Kolluaha Thikha, P.S. Purnahia, District- Sitamarhi while she had gone to ease herself near sugarcane field, she 2 was lifted by accused persons who threw her on the ground and then Mahendra Ram (petitioner) attempted to commit rape. During said course, accused, Munna Ram and Manoj Singh had caught hold her hand while accused Nand Kishore Singh being armed with country made pistol, was keeping watch. On her alarm the villagers arrived, seeing when the accused persons escaped from there. Then thereafter, the matter was reported to her parents who informed respectable persons of the village who advised for Panchayati but during course of Panchayat as the accused persons indulged in criminal action against the family members, thereafter they had gone to hospital. She had also gone to police station but no case was instituted. 3. The learned SDJM transferred the case to the court of Magistrate for holding an enquiry under Section 202 of the Cr.P.C. whereupon vide order dated 5.12.2006, the complaint was dismissed under Section 203 of the Cr.P.C. The aforesaid order was challenged by the O.P. No.2 under Cr. Revision No. 243 of 2006 which was disposed of by Additional Sessions Judge, FTC-3rd Sitamarhi and vide order dated 13.03.2007, the same was rejected. 4. Thereafter, Cr. Misc. No. 38725 of 2007 was preferred before the High Court which was allowed vide order dated 2nd April 2009. Accordingly, the matter was remanded back to the learned lower court for reconsideration and to proceed in accordance with law 3 after observing that there happens to be sufficient material to proceed with the case. Accordingly, the learned Magistrate vide order dated 13.01.2010 summoned the petitioner and being aggrieved therewith, petitioner has filed instant petition. 5. It has been submitted on behalf of the petitioner that wrong procedure has been adopted by the learned Magistrate in directly summoning the petitioner after having the case remanded to his file because of the fact that the aforesaid order happens to be under the banner of Section 398 of the Cr.P.C. Therefore, the learned Magistrate was required to proceed with further enquiry which Section 398 of the Cr.P.C. does prescribe. Non conduction of further enquiry makes the order impugned illegal from its grass-root level. 6. It has further been submitted that both the parties are on litigating terms since before. So many criminal cases are pending amongst the parties and the present one has maliciously been filed to teach a lesson. Then it has been submitted that filing of complaint petition narrating the plea that police had declined to register a case appears to be totally false and frivolous assertion in the back ground of the fact that for the occurrence alleged to have committed on 18.06.2006, there happens to be case and counter case registered at the police station. The case instituted at the instance of Bigan Ram, father of O.P. No.2 appears Purnahia P.S. Case no. 36 of 2006 while the case 4 instituted by the son of petitioner happens to be Purnahia P.S. Case No. 35 of 2006. Further, it has been submitted that after going through the contents of FIR of Purnahia P.S. Case no. 35 of 2006 (Annexure- 4). The allegation whatever been alleged by the O.P. No.2 appears to be completely demolished. Therefore taking into account the principles laid down by the Hon’ble Apex Court in celebrated judgment i.e AIR 1992 SC 604 State of Hariyana & Ors. Versus Bhajan Lal & Ors. It is fit case for quashing of the order impugned. 7. On the other hand, learned counsel for the O.P. No.2 submitted that petitioner has got no leg to standby and challenge the order impugned at the present moment when the case after being committed is proceeding with the trial before the court of sessions, whose all the prosecution witnesses have already been examined, statement of the accused had already been recorded and presently the case is posted for defence. Then submitted that whatever grounds have been raised on behalf of the petitioner was also raised before the High Court at any early occasion, and further, it happens to be a matter to be considered in a full-fledged trial. So far stage of cognizance and summoning of accused is concerned, only a prima facie material has to be seen and the same has been pointed out by the High Court while considering the allegation in consonance with the S.A., statement of witnesses. Therefore, it has been submitted 5 that after having the order of the High Court the Magistrate has got no option than to summon t

Applicable IPC Section: 511

Statute Text:
Section 511 of the Indian Penal Code. Attempting to commit offences punishable with imprisonment for life, or imprisonment, and in such attempt doing any act towards the commission of the offence. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.