IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.714 of 2008 CHANDA DEVI W/O LAKSHMI PATEL --- PETITIONER Versus 1. STATE OF BIHAR 2. RAMASHISH PRASAD S/O SHEO NANDAN PRASAD 3. KRISHNA PATEL S/O RUDAL RAUT 4. SURUJ RAUT S/O RAGHUNATH RAUT --- OPP. PARTIES. For the Petitioner : Mr. Ranjeet Kumar Singh, Advocate. For the O.P.Nos. 2 to 4 : Mr. Anil Kumar, Advocate. For the State : Mrs. Dr. Indiwar Kumari, APP ----------- 03 08.10.2010 Heard the parties. Hapless lady subjected to rape made a complaint alleging therein that on the night of occurrence three accused persons intruded into her room, overpowered her and thereafter committed rape one after another. She wriggled out from their captivity and thereafter raised alarm which attracted his son who came to the room in question and captivated one of the accuseds. The neighbours also arrived. It is the case of the complainant that two other accuseds freed one of their associates and thereafter took to heels. This occurrence had taken place in the intervening night of 17/18-07-2006. On 19.07.2006 she lodged the complaint explaining the circumstances in which the police refused to record the F.I.R. An enquiry was made wherein 02 witnesses were examined besides the statement of the complainant on S.A. Learned Magistrate by order dated 16.07.2007 passed in complaint case no. 1216( c) of 2006 took cognizance under minor Sections of the Penal Code including Section 354 of the Penal Code but refused to take cognizance under Section 376 of the Penal Code. Aggrieved by the aforesaid order the complainant filed Cr. Rev. 2 no. 375/11 of 2007. Learned revisional Court heard both the parties and thereafter disposed of the said revision application directing the Magistrate to pass a fresh order after considering the statements of the complainant on S.A. and the statement of the witnesses examined in course of enquiry. Paragraph no.5 of the order reads as under:- “5. I Perused the case record as well as the order passed by the learned lower court on 16.7.07. It appears that the learned lower Court has taken cognizance u/s 448,354,323 read with 34 of the IPC. He has not mentioned in his order as to why he had not considered the allegation of rape by the opposite parties on the complainant Chanda Devi. It appears that the complainant in her statement on oath has clearly stated of committing rape on her by the opposite parties. P.W.1 Sanjay Kumar and P.W.2 Shambhu Prasad have also supported the statement of the complainant.” Learned Magistrate by impugned order dated 23.06.2008 took cognizance under Sections 448, 354 and 323/34 of the Penal Code but refused to take cognizance under Section 376 of the Penal Code on the ground that there was no medical report in support of allegation of rape and there was some contradictions in the statement of the complainant recorded on S.A. Learned Magistrate has also observed that it was not possible for the three accused persons to commit rape jointly. Learned counsel for the petitioner while assailing the order submits that the order has been passed in the teeth of observation made by learned revisional Court by order dated 22-02- 2008(Annexure-3). It is further submitted that there is no contradiction in the statement of the complainant recorded on S.A. if read in the 3 light of averments made in the complaint. It is the stand of the petitioner that there is allegation in the complaint which constitutes the offence punishable under Section 376 of the Penal Code which has been supported by the complainant and her enquiry witnesses during their respective statements. Learned counsel further submits that in view of these facts appearing from the record learned Magistrate has committed an illegality in not taking cognizance on the reasonings which are not supported by fact or the law. At the stage of taking cognizance the Court is obliged to confine its consideration to the materials brought on record in course of enquiry. No counter affidavit has been filed on behalf of the opposite parties. Learned counsel appearing on behalf of the accused/opposite party nos. 2 to 4 submits that the present proceeding has been lodged because of land dispute between the parties. It is further submitted that there is no eye witness to the occurrence. It is next contended that the witnesses produced by the complainant were family members. I have considered the submissions advanced on behalf of the parties and perused the materials on record including the complaint. Definitely there is allegation about commission of rape at the hands of the three accused persons. There is no denial that the complainant supported her case spelt out in the complaint in her statement made on S.A. Enquiry witnesses seem to have also supported the prosecution case. At the stage of taking cognizance the Court has to confine to the materials brought on record in course of 4 enquiry. Non production of medical evidence and effect thereof may appropriately be considered at the subsequent stage of the proceeding. The reasonings of learned Magistrate that it was not probable that three accused persons will commit rape jointly is also not sustainable considering the scope of the jurisdiction to be exercised by learned Magistrate. It is seen from the complaint that they intruded into the room jointly but ravaged her one after another. Having regard to the submissions made on behalf of the parties and in view of my discussions made above, this Court is inclined to interfere with the order dated 23.06.2008. Consequently order dated 23.06.2008, passed by learned Chief Judicial Magistrate, Motihari in complaint case no. 1216 (c) of 2006 is quashed and set aside. Matter goes back to the learned Magistrate for passing a fresh order in accordance with law. Sym ( Kishore K. Mandal, J.)