IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51320 of 2007 BAIDYANATH RAI, SON OF JHAGRU RAI, RESIDENT OF VILLAGE GHANSHYAM PAKRI, P.S.PIPRA, DISTRICT-EAST CHAMPARAN AT MOTIHARI. -PETITIONER Versus 1. THE STATE OF BIHAR 2. MAINA DEVI WIFE OF RAJU MALLI, RESIDENT OF VILLAGE GHANSHYAM PAKRI, P.S.PIPRA, DISTRICT-EAST CHAMPARAN AT MOTIHARI. -OPPOSITE PARTY For the Petitioner : M/s Dr. Amrendra Kumar & Manish Rai Sharma For the State : Mr. Ajoy Mishra, APP For O.P. No.2 : None 4 31.03.2010 Heard learned counsel for the petitioner and the State. No one appeared on behalf of opposite party no.2 inspite of service of notice. This application has been filed by the petitioner under Section 482 of the Code of Criminal Procedure seeking quashing of order dated 4th October, 2007 passed by Sri Raj Kumar, Judicial Magistrate, Sadar Motihari in Complaint Case no. C628 of 2007 taking cognizance for an offence under Section 376 of the Indian Penal Code. It is submitted by the learned counsel for the 2 petitioner that complaint was filed against three persons including the petitioner but on perusal of the evidence of the complainant on solemn affirmation and other witnesses, court below exonerated remaining two but took cognizance only against the petitioner whereas there is absolutely no material and if such case is permitted to continue it shall be nothing but abuse of process of law. After initial hesitation, learned counsel appearing on behalf of the State also found himself unable to support the impugned order. Complaint case was filed by opposite party no.2 against three persons including the petitioner alleging therein that on the fateful evening, finding her alone in the house, petitioner with his two associates arrived there and started misbehaving with her. On protest, the associates caught hold of her and the petitioner satisfied his sexual lust. When another wanted to do so, her husband arrived, consequently all fled away. Earlier also the petitioner had misbehaved with her. On complaint to the family members, assurance was given that no such thing shall be repeated. In the statement on solemn affirmation, the complainant has narrated her case but, in reply to the Court 3 question, what she has stated completely vanishes out the statements made by her earlier. She is specific that petitioner has already lodged a case under Section 307 of the Indian Penal Code against her husband for the offences under Section 307 of the Indian Penal Code. Thereafter, on due deliberation as to something is required to be done, the complainant’s husband, filed the case and on the day of her statement accompanied her and on his instructions she had narrated the contents made in the complaint petition. The two more witnesses, during enquiry, were examined. They are mother-in-law of opposite party no.2 who too has replied in Court question that there is previous enmity with respect to homestead land and her demeanour was recorded by the Court leading to conclusion by the Court below that no offence was made out. Another witness is husband of opposite party no.2. After stating the complaint version in reply to the Court questions he has clearly stated that he is the real author of the complaint petition and there is previous dispute with respect to homestead land. Taking into consideration the materials 4 available, the court below exonerated two persons, named in the complaint, but took cognizance of offence under Section 376 of the Indian Penal Code against the petitioner alone but the materials brought during enquiry and as stated above, does not warrant any offence against the petitioner also and if, in such a case, the prosecution is permitted to continue it shall nothing but sheer wastage of precious time of Court and abuse of process of law. Accordingly, the impugned order is quashed. The petition stands allowed. (Akhilesh Chandra, J.) AAhmad