Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.30893 of 2009 ====================================================== 1. Sujit Kumar @ Surjit Kumar Sahni , Son of Ram Sagar Sahni 2. Ram Sagar Sahni, S/O Rajgir Sahni, Residents of Village- Vishanpur, Mallah Toli, P.S. + District- Samastipur .... .... Petitioner/s Versus 1. The State Of Bihar 2. Kiran Devi D/O Amiri Sahni, W/O Binod Sahni, Mohalla- Madarpur, Naka No.5, P.S. + District-Darbhanga, presently resident of Village- Vishanpur, Mallah Toli, P.S. + District-Samastipur .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ____________ 3 24-04-2012 Heard Sri Amremdra Narayan Rai, learned counsel for the petitioners and Sri Hirdaya Prasad Singh, learned Addl. Public Prosecutor. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 01.05.2009 passed by learned Sessions Judge, Samastipur in Cr.Revision No.408 of 2005. The learned Sessions Judge has set aside the order of cognizance passed by the learned Judicial Magistrate, 1st Class, Samastipur in Complaint Case no.29 of 2005, T.R. No.1613 of 2005. The learned Magistrate had taken cognizance of offence under [STATUTE] and had not taken cognizance of offence under Sections 376/511 of the Patna High Court Cr.Misc. No.30893 of 2009 (3) dt.24-04-2012 2 / 5 2 Indian Penal Code. Initially, a complaint was filed by Opp.Party no.2 on an allegation that accused persons had tried to commit rape with specific assertion in the complaint petition and also committed other offences. However, the learned Magistrate refused to take cognizance under [STATUTE] . He took cognizance of offence under [STATUTE] . Aggrieved with the order of the learned Magistrate, whereby cognizance of offence under [STATUTE] was not taken, the complainant preferred a revision vide Cr.Revision No.408 of 2005 before the learned Sessions Judge, which was allowed and the learned Sessions Judge directed for remitting back the matter to the learned Magistrate to hear the matter afresh and pass the order in accordance with law. The said order was assailed by the petitioners before this Court vide Cr. Misc. No.21458 of 2006 primarily on the ground that without hearing the petitioners, the revisional court had committed serious error in allowing the revision petition. By order dated 03.01.2007, a Bench of this Court set aside the order of revisional court on the ground that no notice was validly served on the petitioners and while quashing the order of revisional court remitted back the matter for fresh hearing. Patna High Court Cr.Misc. No.30893 of 2009 (3) dt.24-04-2012 3 / 5 3 Subsequently, after hearing the parties, the learned Sessions Judge by the impugned order, i.e. order dated 01.05.2009 has allowed the revision preferred by the complainant/Opp.Party no.2 with a direction to the learned Magistrate to hear the matter afresh and pass order in view of the discussions made in the impugned order. Sri Amrendra Narayan Rai, learned counsel for the petitioners , while assailing the order, submits that the learned Magistrate has rightly not taken cognizance of offence under [STATUTE] . It was submitted that in the complaint petition it was alleged that due to the alleged attempt to commit rape, the complainant, who was carrying 2 ½ months foetus, suffered abortion. Though, the said allegation was made in the complaint petition, the complainant had not adduced any documentary evidence in support of her said claim. It was submitted that in absence of any medical evidence, the learned Magistrate has rightly not proceeded for the offence to commit rape and there was no error and, as such, learned revisional court was not required to interfere with the order of cognizance passed by the learned Magistrate. Learned Addl. Public Prosecutor, while opposing the prayer of the petitioners, submits that in the complaint petition itself, there was specific assertion showing allegation of attempt to Patna High Court Cr.Misc. No.30893 of 2009 (3) dt.24-04-2012 4 / 5 4 commit rape. He submits that in such cases, oral evidence would be sufficient to proceed with the case and in absence of medical evidence, the prosecution case cannot be brushed aside. He submits that the learned revisional court assigning a detailed reason has remitted back the matter to the learned Magistrate for passing order afresh. Besides hearing the parties, I have perused the impugned order and materials available on record. From the impugned order, it is evident that after hearing the parties, the learned Sessions Judge assigning a detailed reason has set aside the order of cognizance passed by the learned Magistrate, whereby the learned Magistrate had taken cognizance of offence under [STATUTE] and had not taken cognizance of offence under [STATUTE] . Moreover, after setting aside the order, the learned Sessions Judge had remitted the matter to the learned Magistrate for passing order afresh. Since the learned Sessions Judge has remitted the matter to the learned Magistrate for passing afresh order, it would not be advisable for this Court to record any opinion and submissions of either of the parties as to whether what would be the value of oral evidence or non-availability of the medical report. It depends upon the learned Magistrate to proceed on the Patna High Court Cr.Misc. No.30893 of 2009 (3) dt.24-04-2012 5 / 5 5 basis of materials available on record. I do not find any defect in the order of the revisional court. Accordingly, the petition stands dismissed. NKS/- (Rakesh Kumar, J)

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.