IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.57038 of 2007 Nikhat Jahan, wife of Sarfaraz Ahmad, Mohalla Raja Bazar, PS Shastrinagar, District Patna – petitioner. Vs. 1. The State of Bihar, 2. Nure Khurshid, son of Late Md. Hafiz Junaid, Mohalla Raja Bazar, Samanpur, Near Choudhary Hotel, PS Shastrinagar, district Patna – opp. parties. … For the petitioner Mr. M.S. Madhup, Senior Advocate and Mr. Ram Pravesh Kumar, Advocate. For the State : Mr. U.S. Prasad Singh, A.P.P. 3 15-4-2010 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 12.7.2007 passed by the IXth additional District and Sessions Judge, Patna in Criminal Revision No. 50/2007 by which the order taking cognizance, dated 26.12.2006 passed by the C.J.M, Patna in Gardanibagh (Shastri Nagar) PS Case No. 331/2006 has been set aside. A complaint petition has been filed in which it is stated that accused no.1 was a friend of the complainant’s husband and he had borrowed Rs. 4 lakhs in lieu of purchase of some land in the locality of Phulwari Sharif and Indrapuri colony at Patna. It is said that the complainant asked to execute the sale deed or return the money, which he did not do. It is alleged that on 1.1.2006 he entered her house and locked the children in a room and thereafter forcibly raped her. The lady was examined on S.A. and the matter remained pending. The said complaint was filed on 15.2.2006. In the mean time the petitioner also lodged an FIR making the same allegations except that in the FIR she has further 2 alleged that on 8.2.2006 the accused came to her house and threatened. The police case was instituted and the police found the case to be false as far as question of rape is concerned. According to the investigation the children or others did not support the story of rape. The police found that in fact there is no evidence to show that opposite party no. 2 had borrowed Rs. 4 lakhs and nor was there any agreement to show that there was talks for sale of any property. The Chief Judicial Magistrate took cognizance under sections 406, 376 and 511 of the Penal Code. The opposite party no.2 being aggrieved by the order filed the revision application. The court hearing the matter found on perusal of the material and the case diary that there was no material to take cognizance under sections 376 and 511 of the Penal Code. The Additional Sessions Judge also found that it was improbable that a sum of Rs. 4 lakhs would have exchanged hands without there being any document or agreement regarding the same. The court has found that the allegations are absurd and improbable and has thereby directed the Investigating Officer to investigate in fact whether the offence under section 406 of the Penal Code is made out against the opposite party. Learned counsel for the petitioner submits that the complaint was filed earlier in time and, therefore, the court should proceed on the complaint petition. It may be noted that the petitioner has filed both the complaint and the FIR. She has filed both the cases after a delay and has given no explanation for the delay. Once there is 3 an investigation by a police officer with respect to a case registered in the police station and the investigation has been completed and charge sheet submitted in court, there was no occasion for the court to proceed simultaneously with the complaint petition once it came to the noticed that an FIR has been instituted for the same offence. I do not find that the reasons of the Additional Sessions Judge in disbelieving the case of rape under section 376 or for disbelieving the case of attempt to rape under sections 376/511 of the Penal Code is unjustified. If the court finds that the contents of the offences are such that they do not appear to be believable by any reasonable person, it would be perversity of law if the prosecution is allowed to continue on the basis of the investigation which does not indicate that a case under section 376 of the Penal Code is made out against the opposite party. I, therefore, see no reason to interfere with the impugned order. This application is dismissed. haque (Sheema Ali Khan, J.)