IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44836 of 2007 LALITA DEVI, wife of Baleshwar Rai, resident of village Nuruddinpur, P.S. Jagdishpur, District Bhagalpur Versus 1. THE STATE OF BIHAR through the Collector, Bhagalpur 2. Harischandra Bishwas (Mukhiya), son of Late Doman Bishwas, resident of village Deshri, P.S. Jagdishpur, District Bhagalpur ----------- 4. 26.3.2010 Heard counsel for the petitioner and the counsel for O.P.No.2. Counsel for the petitioner while assailing the impugned order dated 28.4.2007 has submitted that the court below despite there being overwhelming materials to constitute an offence under section 376 I.P.C. has proceeded to take cognizance only for an offence u/s 354 I.P.C. and in the process has ignored not only the relevant materials constituting such offence but also the mandate of law requiring taking cognizance of an offence on the basis of materials on record by way of allegation in the complaint petition or the statements of the witnesses in course of enquiry u/s 202 Cr.P.C. Per contra, counsel appearing on behalf of O.P.No.2 has supported the impugned order passed by the learned 2 Magistrate and has submitted that there is no flaw in the order taking cognizance u/s 354 I.P.C. In the opinion of this Court the impugned order passed at the stage of taking cognizance cannot be countenanced in law for a simple reason that at the stage of taking cognizance no mini trial has to be conducted. In the present case the court below however has minutely analyzed the statement of all the four witnesses including the prosecutrix and has somehow come to a finding that there were vital and serious contradictions on the issue of physical assault. In normal circumstances the statement of the prosecutrix herself was sufficient to constitute the offence, of rape inasmuch as she has given a detailed description of unfortunate incident. Added to it when the other witnesses have also come out to support some portion of such incident (they being not expected to see the entire alleged offence of rape), it cannot be said that there were such omission and commission in their statements which were capable of taken into account to discredit 3 the specific version of the prosecutrix. Be that as it may, this Court on over all view of the materials on record would find that the court below has exceeded its jurisdiction in passing the impugned order at the stage of taking cognizance when it was only required to look into the existence of prima facie case. That being so, this application is allowed and the impugned order is hereby set aside and the court below is directed to once again reconsider the whole issue and pass a fresh order in accordance with law. (Mihir Kumar Jha,J.) Surendra/