IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.2564 of 2008 MD.AFFAJUDDIN Versus 1. STATE OF BIHAR & 2. BIBI GULFERAJ ----------- 6. 06.05.2010. Heard learned counsel for the parties. The petitioner prays for quashing order dated 3.4.2007, by which cognizance has been taken of offence under section 376 I.P.C. against the petitioner in Complaint case no.1424 of 2006. The petitioner submits that complainant has not examined all the witnesses mentioned in the complaint petition which was necessary u/s 202(2) Cr.P.C. He further submits that the complaint has been filed after delay of 14 months. He next contends that his case is covered by a decision of the Apex court rendered in case of Shekara, reported in 2009(2) PLJR 215 SC. Mr. Sunil Kumar Pathak, Learned counsel for Opp. party no. 2 submits that it is not necessary for the complainant to examine all the witnesses mentioned in complaint case. On the other hand, section 202(2) Cr.P.C. empowers the Magistrate to call upon the prosecution to produce witness. He submits that delay in filing the complaint is explained. In fact the accused had admitted his guilt and his parents assured to solemnize the marriage. In the meantime accused petitioner went to Punjab; Finally as the accused parents refused to solemnize the marriage, this case has been filed. He further submits that the petitioner repeatedly committed sexual intercourse with Opp. party no.2 on the assurance of marriage. - 2 - It would appear from the prosecution case that the learned Magistrate took cognizance on the basis of complaint case, examination of complaint on S.A., as well as examination of witnesses. Section 202(2) Cr.P.C. provides that in an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath, provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of session, he shall call upon the complainant to produce all his witnesses and examine them on oath. Thereafter it is up to the complainant to produce one witness or to produce all such witness. A situation cannot be ruled that there may be an extreme case when complainant may not be able to produce any of the witnesses. Thus criminal prosecution cannot be quashed on the ground that the complainant had not produced all witnesses in enquiry under section 202(2) Cr.P.C. The necessary corollary is that Magistrate must call upon complainant to produce all her witnesses. One may refer in this respect to decision in case of Naresh Ahir Vs. State of Bihar reported in 1988 (2) PLJR 216, Rakesh Kumar Singh Vs. State of Bihar, reported in 2008(4) PLJR 676. The next point is whether the prosecution under Section 376 of Indian Penal Code can be quashed on the ground of 14 months delay in filing the complaint case. It is not a case, where - 3 - there is no explanation for delay in filing of complaint. The sufficiency or inadequacy of explanation of delay would be seen at the time of trial. The submission of the petitioner that as the complainant had subsequently consented to sexual intercourse on assurance of marriage, the offence would come under provisions of Section 354 and not 376 of the Indian Penal Code, has no relevance in this case. The decisions relied by petitioner in case of Shekara Vs. State of Karnataka, reported in 2009 (2) PLJR 215 SC would not be applicable in the facts of this case In the result, this application is dismissed. Shashi. (Samarendra Pratap Singh, J.)