IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.29983 of 2008 1. Ashok Kumar Singh @ Ashok Ram, son of Late Parmeshwar Singh @ Parmeshwar Ram. 2. Niranjan Mahto @ Chhote Mahto, son of Late Firangi Mahto, resident of village-Karai Parshurai, P.S. Karai Parshurai, District-Patna. ……………………………………………….......Petitioners. Versus 1. The State Of Bihar. 2. Fula Devi, wife of Suresh Mahto, resident of village- Karai Parshurai, P.S. Karai Parshurai, District- Nalanda. ………………………………………...Opposite Parties. ---------------------------------- For the Petitioners: M/s. A.K. Thakur and Amit Kumar, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ------------------------------------- 7. 2.12.2011. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 8.6.2008 passed by the Additional Chief Judicial Magistrate, Hilsa (Nalanda), in Hilsa (Karai Parshurai) P.S. Case No.13 of 2008, taking cognizance of the offence under Sections 376, 323, 379 and 504/34 of the Indian Penal Code. 2. In brief, the facts, leading to this application, are that the complainant-informant-opposite party no.2, Fula Devi, filed the complaint case, numbered as Complaint Case 2 No.6556 of 2006, in the court of the Additional Chief Judicial Magistrate, Hilsa (Nalanda), which was sent under Section 156(3) of the Code of Criminal Procedure to the concerned police station for investigation and submission of final form and, accordingly, Hilsa (Karai Parshurai) P.S. Case No.13 of 2008 was registered under Sections 376, 307, 323, 379 and 504/34 of the Indian Penal Code on 5.1.2008, on the basis of the complaint petition of the complainant-opposite party no.2, Fula Devi, forwarded by the Additional Chief Judicial Magistrate, Hilsa (Nalanda) under Section 156 (3) of the Code of Criminal Procedure, for investigation and submission of final form. As per allegation of the complainant-informant- opposite party no.2, Fula Devi, on 15.11.2006 in the evening at about 6.00 P.M. she was returning to her house after cutting the paddy crops. In the way, the accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram and accused-petitioner no.2, Niranjan Mahto alias Chhote Mahto alongwith three unknown were sitting near the canal. On seeing the complainant-informant-opposite party no.2, Fula Devi alone, they carried her catching her breast near the canal, where on folding her Saree and Saya, the accused-petitioner no.1, 3 Ashok Kumar Singh alias Ashok Ram, by closing her mouth, committed rape on her and, thereafter, the accused-petitioner no.2, Niranjan Mahto alias Chhote Mahto, also committed rape on her. Other unknown persons, one by one, also committed rape on her. It is also alleged that while the complainant-informant-opposite party no.2, Fula Devi, was making protest at that time, but the accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram, gave threatening to kill her and conceal the dead body and he was pressing her neck. On reaching the witnesses, anyhow, she saved her life. The further case of the complainant-informant-opposite party no.2, Fula Devi, is that after the occurrence of rape, she went at the house of the accused-petitioner no.2, Niranjan Mahto alias Chhote Mahto, to make complaint regarding the alleged occurrence of rape, where his wife, accused no.3, Manju Devi and daughter, accused no.5, Rachna Kumari, abused and assaulted her and also snatched her ear rings. The accused- petitioner no.2, Niranjan Mahto alias Chhote Mahto, also assaulted her through fists and slaps at that time. 3. The police on investigation of the case submitted the final form against the accused persons including the petitioners finding the case to be untrue in the court of the 4 Additional Chief Judicial Magistrate, Hilsa (Nalanda). The Additional Chief Judicial Magistrate, Hilsa (Nalanda), differing with the final form submitted by the police, took the cognizance of the offence under Sections 376, 323, 379 and 504/34 of the Indian Penal Code against the accused persons, named in the F.I.R., including the petitioners through the impugned order dated 8.6.2008. 4. Learned counsel appearing on behalf of the petitioners submitted that earlier on the basis of the complaint case bearing Complaint Case No.607C of 2006 filed by Suresh Mahto, the husband of the complainant-informant- opposite party no.2, Fula Devi, Hilsa (Karai Parshurai) P.S. Case No.370 of 2006 was instituted on 8.12.2006 under Sections 364 and 366-A of the Indian Penal Code regarding the kidnapping of his minor daughter, Manju Kumari, naming the accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram and six other villagers as accused and in that case, the victim, Manju Kumari, appeared before the court below and gave her statement under Section 164 of the Code of Criminal Procedure denying the allegations about her kidnapping, further stating about her indulgence by her parents forcibly in a flesh trading and further stating therein that she had left the 5 house at her own sweet will and has performed the marriage with Mukesh Ram. Accordingly, the final form was submitted by the police in that case against the accused persons including the accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram, but in spite of that the cognizance was taken against the accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram and others. It is contended that the accused- petitioner no.1, Ashok Kumar Singh alias Ashok Ram, challenged the aforesaid cognizance order passed against him before this Court vide Criminal Misc. No.38091 of 2009 and vide order dated 12.1.2010 passed by a Bench of this Court the aforesaid Criminal Miscellaneous Application was allowed and the cognizance order, with respect to the accused- petitioner no.1, Ashok Kumar Singh alias Ashok Ram, was quashed, which would appear from Annexure-‘4’ to the supplementary affidavit. It has also been submitted that the victim, Manju Kumari, had not only gave her statement under Section 164 of the Code of Criminal Procedure in the case of her kidnapping but she had also lodged the Complaint Case No.634C of 2006 on the basis of which Hilsa (Karai Parshurai) P.S. Case No.380 of 2006 was instituted under Sections 376/34 of the Indian Penal Code and Sections 4/5 of 6 Immoral Traffic (Prevention) Act, 1536, against her father, Suresh Mahto, the husband of the complainant-informant- opposite party no.2, Fula Devi, Sunita, Ajay Sao and Pappu Jaiswal, which would appear from Annexure-‘3’ to the supplementary affidavit. It is further submitted that due to the aforesaid reasons, Suresh Mahto, got filed the present case through his wife, who is herself of bad character, only to put undue pressure on the petitioners and other villagers. Learned counsel for the petitioners further submitted that from perusal of the case diary, it would appear that none of the independent witnesses have supported the allegation, as made in the complaint petition, which is the basis of the said F.I.R., and only minor daughters of the complainant-informant-opposite party no.2 and one Pappu Jaiswal, who is accused alongwith Suresh Mahto, the husband of the complainant-informant- opposite party no.2, Fula Devi and others in the case lodged by Manju Kumari, the daughter of the complainant-informant- opposite party no.2, Fula Devi, regarding committing rape on her and indulging her in flesh trading by them, have said about hearing of committing rape from the complainant-informant- opposite party no.2 and her husband, Suresh Mahto. It is also submitted by the learned counsel for the petitioners that the 7 complainant-informant-opposite party no.2, has specifically stated in the complaint petition that on reaching the witnesses near the place of occurrence, she saved her life but none of the witnesses have said about their reaching nearby the place of occurrence. On the other hand, learned A.P.P. for the State submitted that the learned Additional Chief Judicial Magistrate, has rightly taken the cognizance of the offence under the aforesaid Sections against the accused including the petitioners differing with the police report but conceded that none of the independent witnesses in the case diary have supported the prosecution case. 5. From perusal of the complaint petition, which is the basis of the present F.I.R., it appears that the complainant- informant-opposite party no.2, Fula Devi, and the petitioners are co-villagers. It appears from Annexure-‘2’ to the supplementary affidavit that on the basis of the complaint petition of Suresh Mahto, the husband of the complainant- informant-opposite party no.2, Hilsa (Karai Parshurai) P.S. Case No.370 of 2006 was instituted on 8.12.2006 under Sections 364 and 366-A of the Indian Penal Code regarding the kidnapping of her daughter, Manju Kumari, against the 8 accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram and 6 others alongwith 4-5 unknown and in spite of submission of final form by the police in that case, the cognizance of the offence has been taken by the trial court against the accused persons including the accused-petitioner no.1, Ashok Kumar Singh alias Ashok Ram, differing with the final form and the cognizance order taken of the said case in respect to the petitioner no.1, Ashok Kumar Singh alias Ashok Ram, was quashed by a Bench of this Court vide order dated 12.1.2010 passed in Criminal Misc. No.38091 of 2009, relying on the statement of the victim, Manju Kumari, who denied about her kidnapping, stating about performing the marriage with Mukesh Ram according to her sweet will making the allegations against her parents for indulging her in flesh trading. From perusal of the copy of the case diary, it appears that the independent witnesses, who are the co- villagers of the informant and accused-petitioners, whose statement has been detailed in paragraphs-10, 11 and 19 of the case diary, have denied the occurrence as alleged in the F.I.R. Only Pappu Jaiswal and two minor daughters of the complainant-informant-opposite party no.2, Fula Devi, have stated about the incident saying that they have heard about the 9 same from Suresh Mahto, the husband of the complainant- informant-opposite party no.2 and the complainant-informant- opposite party no.2. Pappu Jaiswal appears to be the accused alongwith Suresh Mahto, the husband of the complainant- informant-opposite party no.2 and others in the case of rape lodged by Manju Kumari, the daughter of the complainant- informant-opposite party no.2, as appears from Annexure-‘3’ to the supplementary affidavit. It also appears that the present case, regarding the occurrence of rape, has been lodged during the pendency of the case of kidnapping lodged by Suresh Mahto, the husband of the complainant-informant-opposite party no.2, Fula Devi, regarding the kidnapping of her daughter, Manju Kumari. In that circumstances, it is inherently improbable to commit the offence of rape as alleged by the complainant-informant-opposite party no.2, Fula Devi and the complaint petition appears to be filed only to put undue pressure upon the accused persons including the petitioners with oblique motive. 6. Due regard being had to the facts and the circumstances of the case, taking of cognizance of the offence under Sections 376, 323, 379 and 504/34 of the Indian Penal Code by the Additional Chief Judicial Magistrate, Hilsa 10 (Nalanda) through the impugned order dated 8.6.2008 in Hilsa (Karai Parshurai) P.S. Case No.13 of 2008, against the petitioners appears to be an abuse of the process of the court. 7. Accordingly, the impugned order dated 8.6.2008 passed by the Additional Chief Judicial Magistrate, Hilsa (Nalanda) in Hilsa (Karai Parshurai) P.S. Case No.13 of 2008, with respect to the petitioners, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)