IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3353 of 2009 KAILASH PRASAD CHOUDHARY, SON OF LATE JAGDISH CHOUDHARY, RESIDENT OF VILLAGE- RUSTAMPUR, P.S.- HAYAGHAT, DISTRICT- DARBHANGA. ----- PETITIONER Versus 1. THE STATE OF BIHAR. 2. MALTI DEVI, WIFE OF VINOD PASWAN, DAUGHTER OF NATHUNI PASWAN, RESIDENT OF VILLAGE- EKUNIGHAT, P.S.- BAHADURPUR, DISTRICT- DARBHANGA. ----- OPPOSITE PARTIES ----------- 2 13.8.2009 Heard learned Counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner has filed this application against the order dated 27.11.2008 by which the Court below has rejected the application filed by the petitioner under Section 228 of the Code of Criminal Procedure. Cognizance was taken for offence under Sections 341, 323, 376/511/34, 452, 342 of the Indian Penal Code and 3(xi) of the S.C. & S.T. Act. Learned counsel for the petitioner submits that in this case final form was submitted and the Chief Judicial Magistrate differing with the final form passed an order taking cognizance. It is submitted that at the stage of charge, the Court ought to have noted the materials and 2 evidence on record and come to his own conclusion. On pursuing the order of the Court below, I find that the Court has noted and taken into account that there are some witnesses who have clearly stated that there was a civil dispute with respect to executing a sale deed of a property between the petitioner Kailash Prasad Choudhary and the father of the complainant. It is on account of the fact that the complainant does not want to register the sale deed after taking money from the petitioner that this false case has been filed by setting up his daughter-in-law to allege rape. The Court has considered that no witnesses are required in order to allege rape and this fact will need to be thrashed out in a full fledged trial. I see no defect in the reasoning of the order impugned and as such this application is dismissed. However, it goes without saying that the Court below will have to consider the evidence of the lady in question before framing charges under 3 Section 376 of the Indian Penal Code as it has been submitted on behalf of the petitioner that no offence under Section 376 of the Indian Penal Code is made out rather the offence would, if at all, come under the purview of Section 354 of the Indian Penal Code. Sanjay (Sheema Ali Khan,J.)