CRIMINAL MISCELLANEOUS No.16205 OF 2007 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- KAMODHYA DEVI wife of Upendra Mukhiya, resident of village- Raghunathpur, Tola-Tehara, P.S.-Basnahi, District-Saharsa. …….. …….Petitioner Versus 1.STATE OF BIHAR 2.Shiv Nandan Poddar @ Laliteshwar Poddar son of Late Kutty Poddar, resident of village-Raghunathpur, Tola-Chakawa, P.S.-Basnahi, Dist.-Saharsa. ……. …….Opp.Parties. -------- For the petitioner: Mr.Prem Kumar Jha For Opp.Party No.2: Mr.Sudhir Kumar For the State: Mr. A.M.P.Mehta, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The petitioner, who was complainant in Complaint Case No.917C of 2002 is before this court while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 20.12.2006 passed by the Additional Sessions Judge, Fast Track Court-V, Saharsa, in Cr. Revision No.475 of 2004. By the said order the learned Additional Sessions Judge has quashed the order of cognizance dated 6.10.2004 taken under sections 376/34 of the Indian Penal Code in Complaint Case No.917C of 2002. Short fact of the case is that the petitioner had earlier filed a complaint in the court of Chief Judicial Magistrate, Saharsa which was numbered as Complaint Case No.917C of 2002 against the petitioner and other two accused persons on an allegation of committing offence under sections 376 and 511 of the Indian 2 Penal Code. Of course, penal sections in the complaint petition are sections 376 and 511 of the Indian Penal Code, in the complaint petition it was categorically averred that the complaint was raped by the accused persons in a field. After filing of the complaint petition the learned Chief Judicial Magistrate under section 192(1) of the Code of Criminal Procedure transferred the case to the learned Sub.Divisional Judicial Magistrate, Saharsa for its enquiry and disposal. Subsequently, the learned Magistrate conducted an enquiry. After examination of four witnesses the learned Magistrate by order dated 6.10.2004 took cognizance of the offence under section 376/34 of the Indian Penal Code and summoned the accused persons. Aggrieved with the order of cognizance opposite party no.2 preferred a revision i.e. Cr. Revision No. 475 of 2004 and the learned Additional Sessions Judge, F.T.C.-V, Saharsa by its order dated 20.12.2006 quashed the order of cognizance and remitted back the matter to the court of Chief Judicial Magistrate, Saharsa for exercising power under section 156(3) of the Code of Criminal Proceduere. Aggrieved with the order dated 20.12.2006 passed by learned Additional Sessions Judge, F.T.C.-V, Saharsa in Cr.Revision No.475 of 2004, the petitioner approached this court by filing the present petition. Mr. Prem Kumar Jha, learned counsel appearing on behalf of the petitioner while challenging the impugned order submitted that the learned Magistrate has taken cognizance of the offence and issued processes for securing attendance of the 3 accused persons. The learned revisional court was not at all authorized to direct the learned Chief Judicial Magistrate to refer the matter to the police for its registration and investigation under section 156(3) of the Code of Criminal Procedure. It has been submitted that power under section 156(3) of the Code of Criminal Procedure is to be exercised immediately after filing of the complaint and not at subsequent stage. It has been submitted that in the present case the learned Magistrate had conducted a detailed enquiry and during enquiry of the case four witnesses were examined who categorically supported the complaint’s case and, only thereafter, the learned Magistrate had taken cognizance of the offence. On the aforesaid ground, it has been prayed to set aside the order of revisional court. Mr. Sudhir Kumar, learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. Learned counsel for opposite party no.2 has also filed a counter affidavit. It has been submitted that opposite party no.2 at the relevant time was a teacher in a Government School. Learned counsel has further submitted that the husband of the complainant was in litigating term with the petitioner since long. On earlier occasion also frivolous compliant was filed by the husband of the complainant against the petitioner. Learned counsel has specifically referred to Annexure-C/11 to the counter affidavit, which is a photo copy of the certified copy of Complaint Case No.295C of 2002 which was filed by husband of the petitioner (complainant) in which along with opposite party no.2 other two 4 persons were also arrayed as accused. The said complaint was filed in the month of May, 2002 and thereafter, successively present complaint was filed in the month of November, 2002. Learned counsel for opposite party no.2 has also referred to the impugned order wherein the learned Sessions Judge had noticed that a number of cases were pending in between the parties. Learned counsel for opposite party no.2 has also submitted that on earlier occasion a boy was kidnapped by the husband of the complainant in which a Panchayti was held in the village. Opposite party no.2 being a government teacher was one of the Panches in the Panchayti and he had taken an active role for the purpose of recovery of the kidnapped child. It was submitted that this is also one of the reasons for filing the present false complaint petition. Accordingly, it has been prayed that the petition may be rejected. Mr. A.M.P. Mehta, learned Additional Public Prosecutor appearing on behalf of the State has submitted that the learned Sessions Judge has rightly passed a judicious and fair order. Besides hearing learned counsel for the parties, I have also perused the materials available on the record particularly the impugned order of the revisional court. The court is of the opinion that in such a serious cases like the present case it was not desirable for the learned Magistrate to proceed with the complaint case. Such cases are required to be thoroughly investigated by the statutory investigating agency. In the present case it was alleged 5 that three persons had committed rape. The court is of the opinion that such matter is required to be thoroughly investigated. After going through the impugned order of the learned Sessions Judge, the court is of the opinion that in larger interest he has rightly passed the impugned order which requires no interference. On the ground of technicality it would not be proper to interfere with the present matter. Accordingly, I do not find any merit in the present petition and the petition stands rejected. Patna High Court, The 3rd November, 2010 Md.S./NAFR ( Rakesh Kumar, J.)