IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16336 of 2008 1. Bhagwan Prasad @ Bhagwan Ji Prasad, son of Ganga Sah, 2. Lutan Yadav, son of Gyani Yadav, both of village Bherihari, Ps Ramgarhwa, District East Champaran, Motihari – petitioners. Vs. 1. The State of Bihar, 2. Sita Devi, wife of Hiralal Sahni, village Bherihari, PS Ramgarhwa, District East Champaran, Motihari – opp. parties. … For the petitioners : Ms. Soni Srivastava and Mr. Suresh Kumar, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For opp. party no.2 : Mr. B. J. Ojha, Advocate. 7 22.3.2010 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 5.3.2008 passed by the Judicial Magistrate, Ist Class, Raxaul at Motihari in Enquiry Case No. 78/2008, arising out of Complaint Case No. 360/2002 by which cognizance for the offences under sections 376/34 of the Penal Code has been taken. The occurrence is said to have taken place on 2.11.2002 in which the complainant has alleged that petitioner no.1 had raped her in a field whereas, two other persons had held her down while the said offence was committed. The complaint was filed on 5.11.2002 after three days. The complainant was examined on S.A. along with the witnesses and thereafter on 23.1.2003 the complaint petition was dismissed. The complainant had examined Teras Sahni, Ram Janak Sahni, Sitaram Sahni and Hiralal Sahni to support the allegations. The court taking cognizance has found that the four witnesses did not support the complaint petition with respect to the occurrence, the manner in which it had taken place and the place of occurrence and as such the Chief Judicial Magistrate, Motihari dismissed the complaint. The court also found that the complainant herself changed the version of the occurrence on S.A. 2 The order dismissing the complaint, dated 23.1.2003 was challenged before the Sessions Judge, Motihari in a criminal revision which was also dismissed on 28.2.2004. Against the revisional order the complainant came to this court and filed a petition under section 482 of the Cr.P.C. for quashing the order. The petitioners were not able to pursue the matter in the High court and thereafter this court had passed an order remanding the matter to the Chief Judicial Magistrate, Motihari and directed that further evidence should be taken in this case. The Chief judicial Magistrate without taking further evidence took cognizance on 3.8.2007 of the offences under section 376 of the Penal Code. The order of cognizance came to be challenged by filing Cr. Revision No. 409/2007. The Sessions Judge, Motihari quashed the order of cognizance on the ground that the High court had directed that further evidence should be taken in this case. Contrary to the order of the High court, the Chief Judicial Magistrate had proceeded in the matter without taking any further evidence on the basis of the earlier S.A. and evidence that had come on record. After remand the Chief Judicial Magistrate examined the complainant on S.A. and the complainant also examined one witness, namely, Indrajit Yadav on her behalf. On perusal of the S.A. I find that the lady has changed her statement and she does not support her case in the complaint petition. She has exaggerated the allegations when she says that she was raped by three persons. She has also changed the place of occurrence. She has stated that she has already given evidence in the case. The other witness 3 examined on her behalf , namely, Indrajit Yadav, has neither been named in the complaint petition as a witness nor has he been named in the first S.A. or for that matter in the second S.A. to support the allegations made in the case. On perusal of the entire facts that emerges in this case is that there is contradictions in the first statement, second statement and with respect to the manner in which the occurrence took place and the place of occurrence. It does not inspire confidence of the court at all. Counsel for opposite party no.2 submits that even if the entire allegations are taken into account, one fact is that the lady was raped by petitioner no.1. This aspect of the matter needs investigation by an independent agency. It is relevant to say that the occurrence had taken place but if there is glaring contradictions which have come on record as would be apparent from the facts stated above, the court cannot conclusively hold that the allegations are prima facie correct and the court should proceed in this case and try the accused persons. This court finds it expedient in the interest of justice that the Chief Judicial Magistrate, Motihari should refer this matter to the police under section 156(3) of the Cr.P.C. for investigation. Accordingly, the impugned order taking cognizance, dated 5.3.2008 is hereby quashed. This application is disposed of with the aforesaid observation. haque (Sheema Ali Khan, J.)