IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33122 of 2006 NEELAM DEVI, Wife of Bishwanath Prasad, R/o village Jagarganj, P,S. Jehanabad, District Jehanabad ……… Petitioner Versus 1. STATE OF BIHAR 2. Chandra Bhushan Prasad, Son of Shradhanand Prasad, R/o Gandhi Maidan Road (near Police Station) P.S. Masaurhi, District – Jehanabad ….. Petitioner ----------- For the petitioner : M/s Anil Singh & Gopal Prasad Rai For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : M/s Gautam Bose, Sr. Advocate, Anil Kumar Roy & Mrs. Ratna Das, Advocates O R D E R The informant of Jehanabad P.S. Case No. 409 of 2000 has prayed for quashing of the order dated 16.9.2005 passed therein by the learned Chief Judicial Magistrate, Jehanabad, whereby he has taken cognizance of offences punishable under sections 448, 342, 376, 380 IPC against only three of the five FIR named accused and has exonerated accused Chandra Bhushan Prasad, impleaded as O.P. No. 2 herein, by accepting the final form submitted against him without hearing the petitioner, although a protest petition filed by him was pending on the records. A further prayer has been made for issuing direction to take cognizance against the said Chandra Bhushan Prasad in the above mentioned case. According to the informant, Neelam Devi, as contained in her written report submitted to the police on 19.9.2000 she is a resident of Jafarganj within P.S. and District 2 Jehanabad even as her husband carries on business in Gaya where he commutes every day and she is left alone in the house. It is alleged that at about 8 P.M. on 19.9.2000 accused Gopal Prasad asked her to open the door and taking him as her own as she opened the door Gopal and 4 others, whom she knew and identified, entered into the room and started inquiring about her husband and when the husband could not be found accused Gopal Prasad, Awadhesh Prasad Soni and Rajiv Ranjan Prasad Sinha along with her started searching for him in the rooms of the house and when they entered into the fifth room all the three persons took turns in committing rape on her even as accused Chandra Bhushan Prasad and the other stood guard. It is further alleged that all the persons were armed with pistols and it was at the point of pistol that the rape was committed. It is also alleged that while departing, Chandra Bhushan and Uma Shankar respectively took away all her ornaments and 5000/- rupees in cash and tied her arms and legs and gagged her mouth. They left her in the room and locked the door from outside. They also threatened that if any voice is raised in future regarding partition her husband Bishwanath would be done to death and if any case was lodged she would face dire consequences. After she managed to free herself she claimed to have raised alarm, attracted whereby people of the neighbourhood arrived and one of them Rafique Alam is reported to have informed the police at about 9 P.M. over telephone and subsequently she claims to have gone to 3 the police station at around 10.30 P.M. with her husband and submitted the written report. The grievance of the petitioner is that a clear case against accused Chandra Bhushan was made out from her written report and the materials available in the case diary but notwithstanding the same the police did not submit a charge sheet against him having accepted his plea of alibi without real inquiry into the matter. In this connection my attention was sought to be drawn to paragraphs 4, 15, 21 to 23 , 25 and 26 of the case diary. The further grievance of the petitioner is that although a protest petition was filed and pending in the case the learned Magistrate ignoring the same accepted the final report notwithstanding the fact that the prayer for bail by the said Chandra Bhushan on the ground of alibi has been rejected by the High Court. It was the further grievance of the petitioner that the acceptance of the final form by the learned Magistrate was illegal, vitiated and non sustainable in law. It is by now well settled that on receipt of a report submitted by the police after holding due investigation containing the various details set out therein the Magistrate has to consider the report judicially and take a decision whether or not to take cognizance of offence. The words “may take cognizance” implied in section 190(1) Cr.P.C. imports the exercise of judicial discretion and the Magistrate may or may not take cognizance depending on the materials available and for this the Magistrate 4 can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case if he things fit in exercise of his powers under section 190(1)(b) Cr.P.C. In the instant case the written report discloses that even as Gopal Prasad, Awadhesh Prasad Soni and Rajiv Ranjan Prasad Sinha took turns in satisfying their carnal desire, accused Chandra Bhushan and Uma Shankar stood guard. However, there is no allegation against them of having committed rape. Paragraph 4 of the case diary is the purported statement of the husband of the informant, Bishwanath Prasad, who was not an eye witness of the occurrence and in fact is a hearsay witness. Paragraph 15 of the case diary is the seizure list of victim’s clothings prepared by the Investigating Officer in the alleged presence of witnesses Bishwanath Prasad and Rakesh Kumar and the objective observation of the Investigating Officer is that there were some stain marks akin to those of spermatozoa. Paragraphs 16 and 17 of the case diary are the statements of the two seizure list witnesses. So far as the statements in paragraph nos. 21 and 22 of the case diary are concerned, they are the statement of witnesses Laxmi Devi and Hiramani Devi who merely stated that they arrived on hearing alarm and untied the rope with which the informant had been tied. Paragraph nos. 23, 25 and 26 contains the statements of Shah Khatoon , Abdul Gaffar and Md. Khursheed, who have merely stated of the arrival of a Maruti Car which came 5 to the house of the informant wherefrom five persons got down, entered into the house after some time and then left the house after about an hour. These three witnesses have categorically stated that they did not identify the five persons and it was later on that they had learnt about the informant having become a victim of rape. Apparently the paragraphs of the case diary relied upon by the learned counsel for the petitioner do not come to her help. From the above it would appear that there is no material in the case diary to connect the said O.P. No. 2 with the crime and the police had rightly submitted a final report as against him due regard being had to his alibi which had come to light in course of investigation and appeared to the Investigating Officer to be bona fide Unfortunately the protest petition filed by the informant has not been brought on record and it is not known what are the grounds taken therein. However, it goes without saying that a protest petition filed in a case has to be taken up for consideration independent of the charge sheet / final form submitted by the Investigating Officer. Therefore, no illegality in the Magistrate having accepted the final report in respect of O.P. No. 2 herein as submitted by the police. O.P. no. 2 has appeared and counter affidavit as also a supplementary affidavit have been filed on his behalf duly sworn by his wife. The submissions on behalf of O.P. No. 2 is that the 6 informant is his sister in law (Sali) and he has been impleaded in the case with mala fide intention. It is further submitted that accused Gopal Prasad is the elder brother of the husband of the informant whereas accused Uma Shankar Prasad is his son and it is difficult to believe that these persons who are so closely related to the informant would stoop themselves to such a level of degradation. Through the supplementary affidavit it was sought to be brought to my notice that principal accused Gopal Prasad, aged about 65 years, has been acquitted at the trial in Sessions Trial No. 147 of 2007, a photocopy of the judgment whereof has been filed as Annexure E. From perusal of the said judgment it is apparent that a family dispute in respect of lands was going on between the informant’s husband, Bishwanath Prasad on the one hand and Gopal Prasad on the other which had amicably been settled inbetween them. Be that as it may, from perusal of the written report of the informant as also the paragraphs of the case diary as referred to by the learned counsel for the petitioner I do not find any impropriety in the learned Magistrate of not having differed from the police report and taken cognizance against O.P. No. 2 herein, Chandra Bhushan Prasad, as per the desire of the informant. The learned Magistrate was also justified in not taking into consideration the protest petition filed by the informant while taking cognizance since that is another matter and has to be looked into independent of the report submitted by the 7 Investigating Officer. The acquittal of co-accused Gopal Prasad in the Sessions Trial also has a large bearing in the matter in issue. The entire story as cooked up by the informant in her written report does not appear to be sound and with all my efforts I am unable to find any fault with the impugned order passed by the learned Magistrate. For the reasons stated above I find no merit in this application which is dismissed. Patna High Court, Patna. Dated : The 1st of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)