Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.47327 of 2008 ===================================================== 1. Munna Singh. 2. Tunna Singh. 3. Ramashish Singh. All sons of Markandey Singh. 4. Dau Tiwari, son of Late Sheshu Tiwari. All resident of village-Eshiya, P.S. Chainpur, District-Kaimoor. .... .... Petitioners. Versus 1. The State of Bihar. 2. Rajwanti Devi, wife of Subhash Tiwari, resident of village- Eshiya, P.S. Chainpur, District-Kaimoor. .... .... Opposite Parties. ===================================================== Appearance : For the Petitioners. : Mr. Om Prakash Pandey, Advocate. For the State : Mr. Dashrath Mehta, A.P.P. For the O.P. No.2 : Mr. Kumar Sunil, Advocate. ===================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV ORDER ------------------- 6 29-02-2012 The petitioners have filed this application, under Section 482 of the Code of Criminal Procedure, to quash the order dated 14.8.2008 passed in Criminal Revision No.129 of 2007 by the Additional Sessions Judge, Fast Track Court No.IV, Kaimur at Bhabhua, allowing the aforesaid Criminal Revision setting aside the order dated 15.2.2007 passed by the court of Sri S.B.M. Tripathi, Judicial Magistrate, First Class, Kaimur at Bhabhua, in Complaint Case No.596(C) of 2001, dismissing the application filed on behalf of the opposite party no.2 under Section 323 of the Code of Criminal Procedure. 2. In brief, the case is that the opposite party no.2, Patna High Court Cr.Misc. No.47327 of 2008 (6) dt.29-02-2012 2 / 6 2 Rajwanti Devi, Complaint Case No.596(C) of 2001, under [STATUTE] and Section 27 of the Arms Act against the accused-petitioners in the court of the Chief Judicial Magistrate, Kaimur at Bhabhua. On inquiry under Section 202 of the Code of Criminal Procedure, the accused-petitioners were summoned finding prima facie case under [STATUTE] and Section 27 of the Arms Act. On examination of the witnesses, before charge, the opposite party no.2 filed an application on 30.3.2005 under Section 323 of the Code of Criminal Procedure to commit the case to the court of sessions with the submission that there is sufficient evidence to constitute the offence under [STATUTE] against the accused-petitioners in the court of Sri S.B.M. Tripathi, Judicial Magistrate, First Class, Kaimur at Bhabhua, who on hearing the parties and perusing the records of the case, dismissed the aforesaid application vide order dated 15.2.2007. Being aggrieved and dissatisfied with the aforesaid order dated 15.2.2007 , the opposite party no.2 filed the Criminal Revision No.129 of 2007, which was allowed by the Additional Sessions Judge, Fast Track Court No.IV, Kaimur at Bhabhua, vide order dated 14.8.2008, setting aside the order dated 15.2.2007 passed by the court of Sri Patna High Court Cr.Misc. No.47327 of 2008 (6) dt.29-02-2012 3 / 6 3 S.B.M. Tripathi, Judicial Magistrate, First Class, Kaimur at Bhabhua, dismissing the application dated 30.3.2005 filed on behalf of the opposite party no.2 under Section 323 of the Code of Criminal Procedure to commit the case to the court of sessions, with a direction to the Magistrate to pass a fresh order after considering all the materials available on the record in accordance with law. 3. Learned counsel appearing on behalf of the petitioners made submission that the learned Magistrate after discussing the evidence in detail, as recorded before charge, rightly dismissed the application dated 30.3.2005 filed on behalf of the opposite party no.2 under Section 323 of the Code of Criminal Procedure to commit the case to the court of sessions arriving at finding that prima facie the offence under [STATUTE] is not made out but the learned Additional Sessions Judge, Fast Track Court No.IV without adverting the evidence showing the act of attempt to commit rape has illegally allowed the Criminal Revision No.129 of 2007 vide order dated 14.8.2008, as preferred by the opposite party no.2 against the order dated 15.2.2007. 4. On the other hand, learned counsel appearing on behalf of the opposite party no.2 made submission that the learned Patna High Court Cr.Misc. No.47327 of 2008 (6) dt.29-02-2012 4 / 6 4 Additional Sessions Judge, Fast Track Court No.IV, on appreciating the evidence available on the record, has rightly allowed the Criminal Revision No.129 of 2007, setting aside the order dated 15.2.2007 passed by the learned Magistrate, dismissing the application filed on behalf of the opposite party no.2 under Section 323 of the Code of Criminal Procedure to commit the case to the court of sessions. 5. On perusal of the order dated 15.2.2007 passed by the court of Sri S.B.M. Tripathi, Judicial Magistrate, First Class, Kaimur at Bhabhua, it appears that the learned Magistrate has very categorically discussed the evidence of the prosecutrix/opposite party no.2 and witnesses, who are her sons and husband, and came to the finding that there is no material on the record to constitute the offence under [STATUTE] against the petitioners and, accordingly, dismissed the application filed on behalf of the opposite party no.2 under Section 323 of the Code of Criminal Procedure to commit the case to the court of sessions. 6. The Additional Sessions Judge, Fast Track Court No.IV, Kaimur at Bhabhua, through the impugned order dated 14.8.2008 passed in Criminal Revision No.129 of 2007, as preferred by the opposite party no.2 against the aforesaid order Patna High Court Cr.Misc. No.47327 of 2008 (6) dt.29-02-2012 5 / 6 5 dated 15.2.2007, has reversed the finding of the learned Magistrate only on the ground that the witnesses have stated that an attempt was made by the petitioners to commit the rape on the opposite party no.2.

Applicable IPC Section: 449

Statute Text:
Section 449 of the Indian Penal Code. House-trespass in order to the commission of an offence punishable with death. Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.