IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10819 of 2008 1. QUAZI MUSHTAQUE S/O QUAZI USMAN 2. QUAZI REHAN S/O QUAZI MUSHTAQUE ALAM --- PETITIONERS Versus 1. STATE OF BIHAR 2. NAZ FATMA D/O QUZZI MANSOOR ALAM --- OPP. PARTIES. For the Petitioners : Mr. N.K. Agrawal, Sr. Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 04 25.10.2010 Heard the parties. Petitioners are facing accusations punishable under Sections 376 and 504/34 of the Penal Code based on an F.I.R. (Annexure-1) which was lodged on 26.04.2006 by the victim/opposite party no.2. As per allegation in the F.I.R., on the alleged date and time of occurrence, the accused(s) intruded into the room of the informant and petitioner no.2 committed rape on her at gun point. This gave rise to Baisee P.S. case no. 41 of 2006 dated 26.04.2006 whereafter investigation commenced. It appears that prior to lodging of the aforesaid F.I.R. she had also filed a complaint (Annexure-5) on 21.04.2006 alleging therein the same facts. The victim was examined on S.A. on 10.05.2006 wherein on a Court question as to the meaning of rape she answered that the same meant to her outraging modesty. The police upon conclusion of investigation submitted charge sheet on 31.10.2006 whereafter cognizance was taken by learned Chief Judicial Magistrate having found that the police papers submitted along with charge sheet indicate materials making out prima facie a case under Sections 376/504 of the Penal Code. 2 The order was passed on 07.02.2008. Learned counsel appearing on behalf of the petitioners submits that going by the statement of the victim on solemn affirmation made in connection with the complaint lodged by her at the first instance it would appear that a case under Section 354 of the Penal Code has been made out and not a case under Section 376 of the Penal Code. Learned counsel appearing on behalf of the opposite party no.2, on the other hand, supports the impugned order and submits that materials collected in course of investigation of the case incriminate the petitioners in the case and on a consideration of those materials, learned Magistrate has found that a prima facie case is made out and accordingly cognizance has been taken. It is contended that pursuant to the order impugned charge(s) have already been framed and trial has commenced in which 03 witnesses have already been examined. Section 210 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) deals with a situation where in relation to an occurrence both investigation as well as enquiry pursuant to the complaint is/are pending. Section 210 of the Code reads as under:- “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence._ (1) When in a case instituted otherwise than on a police report( hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is 3 in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquired into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” On going through the provisions, it would appear that whenever it comes to the knowledge of the Court that in relation to the occurrence which is being enquired into on the strength of the complaint a police investigation is pending the Court shall stay its hand and await for the police report. Sub- Section 2 vests the Magistrate to act on the basis of the police report. Learned counsel for the petitioners submits that in the present case complaint was initially lodged followed by F.I.R. leading to investigation. In his submission Section 210 of the Code shall have no application. I am afraid the said submission would sustain in the light of provisions of the Code. In view of the aforesaid discussions as also taking into account the fact that trial has already commenced in which 4 several witnesses have been examined, this Court declines to interfere with the order impugned. The application lacks merit. It is, accordingly, dismissed. Sym ( Kishore K. Mandal, J.)