IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2584 of 2008 1. TARKESHWAR PRASAD SINHA @ RAI SAHIB, son of Late Sidheshwar Prasad Sinha. 2. Piyush Raj, son of Late umeshwar Prasad Sinha,both residents of Raj Ballabh Transport, Mohalla-kirani Ghat, police station Kotwali, Gaya. Versus 1. THE STATE OF BIHAR 2. Bhawna Sahay, C/o Anjala Sahay, resident of Mohalla Bairagi More, Police Station Delha, Gaya. For the petitioner :Mr.Pramod Kr. Sharma For the State :Mr.Matloob Rab,APP For O.P.No.2 :Mr. S.D.Sanjay ----------- 07. 08.07.2010 Heard the parties. Petitioners assail the order dated 11.8.2006, passed by the learned Judicial Magistrate, Gaya 1st Class in a case arising out of Complaint Case No.1014 of 2006(Bhawna Sahay vs. Tarkeshwar Pd. Sinha & Ors.), whereby cognizance of the offence under diverse sections of the Penal Code has been taken. The complainant(O.P.No.2) lodged a complaint alleging therein that on 7.6.2006 when she was alone at her uncle’s home, the accused persons entered into the house and finding her alone committed rape on her. She was also assaulted. There was also an attempt to throttle her mouth in order to silence her. The complainant was examined. One witness was also produced in the shape of mother-in-law of the complainant. On a consideration of the material available on record in course of such inquiry made by the learned Magistrate in terms of section 202 of the Code of Criminal Procedure, it has been found and held that - 2 - a prima facie case punishable under sections 323,354, 380 and 506 IPC has been made out. Consequently, cognizance has been taken. Learned counsel for the petitioners while assailing the sustainability of the order, submits that the present prosecution is thoroughly malicious and mala fide. He submits with reference to Annexure-2 that in the year 2005 one Puja Shilpi had lodged a case under diverse sections of the Penal Code including section 376 IPC against the husband of the complainant. Learned counsel representing the complainant states that considering the scope of the provisions under which the impugned order has been passed this Court may not interfere with the impugned order. The case of the accuseds-petitioners shall be considered at the trial. Having heard learned counsel for the parties and after going through the materials on record, this Court is satisfied that no illegality has been committed by the learned Magistrate in passing the impugned order on the basis of material placed on record. Further, it appears that learned Magistrate has applied his judicial mind and on the basis of materials on record has not taken cognizance of the offence under section 376 IPC. That definitely indicates that the exercise of jurisdiction is not mechanical. There is no merit in this application which is accordingly dismissed. hr ( Kishore K. Mandal )