IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56552 of 2007 1. SHYAMA DEVI WIFE OF MAHENDRA MAHTO 2. PINKI KUMARI ALIAS GEETA DEVI, DAUGHTER OF MAHENDRA MAHTO 3. PUNAM KUMARI DAUGHTER OF MAHENDAR MAHTO 4. SEEMADEVI ALIAS ANITA DEVI WIFE OF UPENDRA MAHTO 5. KRISHNA ALIAS KRISHNA MAHTO SON OF MAHENDRA MAHTO 6. MAHENDRA MAHTO, SON OF RAM SEWAK MAHTO 7. UPENDRA MAHTO SON OF RAM SEWAK MAHTO, ALL RESIDENT OF VILLAGE ANDAHA P.S. UJIARPUR DISTRICT SAMASTIPUR. …PETITONERS Versus 1. STATE OF BIHAR 2. GULSAN KHATOON, D/O MD ALI JAN RESIDDNT OF VILLAGE ANDAHA, P.S. UJIARPUR, DISTRICT SAMASTIPUR, …OPPOSITE PARTIES For the petitioners :Mr. Sujit Kumar Singh For the State :Mr. Maynand Jha For the O.P.No.2 :Mr.Dhirendra Kr.Jha ----------- 03. 09.07.2010 Heard learned counsel for the petitioners, the informant and the State. Petitioners are aggrieve by the order dated 25.9.2007, passed by the learned Judicial Magistrate, Dalsingsarai, Samastipur in G.R.No.454 of 2007 arising out of Ujiarpur P.S.Case no.122 of 2007, whereby differing with the final report, learned court below has taken cognizance against the petitioners under sections 366 and 376 IPC. Gulsan Khatoon is the informant of the case. She lodged an FIR alleging therein, inter alia, that she was married about six years ago according to Muslim rites with one Md.Tahir. She went to the matrimonial home and after few days returned back to her father’s - 2 - place. From the said wedlock one daughter was born who is aged about three years. During her stay with the parents she fell in love with one Arvind Mahto and thereafter she started living with him in his house. The husband of the informant stopped coming to her place. About eight months back Arvind Mahto brought her to Ludhiana and where she got married with him in a temple and after sometime both returned back to village Andaha. Arvind Mahto subsequently kicked her out of the home and a sum of Rs.45,000/- was offered to her. It is further alleged that father-in-law, mother-in-law and other family members of Arvind Mahto misbehaved with her. The police embarked upon the investigation whereafter a charge-sheet was submitted. The police did not find accusation substantiated against the petitioners herein who are family members of the aforesaid Arvind Mahto. Accordingly, Arvind Mahto singularly was sent up for trial, whereas these petitioners were exonerated. Learned Magistrate on a perusal of materials available on record has found that there is some evidence available against the petitioners herein and accordingly cognizance has been taken under sections 366 and 376 IPC. While assailing the sustainability of the impugned order, learned counsel for the petitioners submits that a bare perusal of the FIR would show that these petitioners are not guilty of the offence(s) punishable under sections 366 and 376 IPC. It is submitted that a vague and generalized allegation has been levelled at the foot of the FIR justifying action against them. Said allegation(s) was/were thoroughly investigated and found not substantiated in course of investigation. - 3 - Learned counsel for the informant, on the other hand, submits that at the stage of taking cognizance the Magistrate is only required to be satisfied from the materials on record that there is a prima face case against petitioners. I have considered the submissions of the parties and perused the impugned order and other materials available on record. Section 366 reads as under: “366. Kidnapping, abducting or inducing woman to compel her marriage, etc- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be, forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.” Section 375 reads as under: “375. Rape.- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions.- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. - 4 - Fourthly.- With her consent, when the man knows he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age.” From the allegation(s) contained in the FIR which is the sheet-anchor of the prosecution case it appears to me that the allegation contained therein are vague and do not constitute any offence under sections 376 and 366 against the family members(petitioners herein). Learned counsel for the informant is right in his submission that considering the scope of the jurisdiction, the Magistrate has to confine itself to the materials on record and has to record his satisfaction about the presence of prima facie case. This Court, however, exercises a wide jurisdiction under section 482 of the Code of Criminal Procedure. While Exercising such jurisdiction the court has to consider the salient aspects of the case and if it is found therefrom that no case is made out or the prosecution launched is mala fide and with oblique motives, then this Court in exercise of such power will be fully justified in interfering with the order/proceeding. Considering all aspects of the matter and keeping in focus the ingredients of the penal sections invoked against the - 5 - petitioners in the present case, I am of the view that petitioners cannot be said to have committed the said offence. The allegations are directed against the accused Arvind Mahto who took the informant to Ludhiana, allegedly married and established sexual relationship thereafter kicked her out of the matrimonial home. Seen thus, this Court is satisfied that in the ends of justice the impugned order dated 25.9.2007, passed by the learned Judicial Magistrate, Dalsingsarai, Samastipur in G.R.No.454 of 2007 arising out of Ujiarpur P.S.Case No.122 of 2007 taking cognizance in so far as it relates to petitioners herein requires to be interfered with and set aside. I order accordingly. The application is accordingly allowed. hr ( Kishore K. Mandal )