IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39769 of 2008 1. Jago Sah @ Jagdish Sah, Son of late Ramu Sah 2. Dashrath Sah, Son of Jago Sah 3. Sarwan Sah, Son of Jago Sah All are resident of Village Kalikapur, PS Barari, District Katihar ---- Petitioners Versus 1. The State Of Bihar. 2. Phulan Devi, Wife of late Sudhir Mandal, Resident of Village Kalikapur, PS Barari, District Katihar --- Opposite Parties ----------- 2 25.7.2011 The order impugned dated 19.7.2008 taking cognizance under Sections 323, 376 and 57 of the Indian Penal Code against petitioner no. 2 and 323 and 457 of the Indian Penal Code against petitioner nos. 1 and 3 has been passed after the order of remand of Cr. Revision No. 183 of 2006. Originally the Judicial Magistrate, 1st Class, Katihar found that an offence is made out 323 of the Indian Penal Code and, therefore, the cognizance was taken under the offence aforesaid. After remand the Court has taken cognizance against all the petitioners under Section 376 and other Sections as well. Learned counsel for the petitioners submits that the Court ought to have taken into consideration the evidence led under Section 202 before taking further cognizance in this case. It is submitted that there is no evidence to support the factum of rape against the petitioners in the subsequent statement given by the complainant as well as her witnesses and, therefore, the order impugned is illegal and has been made without any application of mind. I, therefore, without going into the details quash the order dated 19.7.2008 and remand the matter back to the Judicial Magistrate, 1st Class, Katihar who shall issue notice to the opposite 2 party/complainant and after hearing the parties, considering the evidence on S.A. and the evidence of the witnesses pass a fresh order in accordance with law, within a period of three months on receipt of a copy of this order. Counsel for the petitioners is directed to produce a copy of this order before the Court concerned within a period of one month from the date of receipt of a copy of this order failing which this application shall stand dismissed. I may clarify that in case the case has proceeded and the charges are framed, this order will automatically infructuous. This application is disposed of with the aforesaid observations and directions. Sanjay (Sheema Ali Khan, J.)