IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45589 of 2006 SK.TAHIR, SON OF LATE SK. RASID, RESIDENT OF VILLAGE NAYATOLA, P.S. AMDABAD,DISTRICT-KATIHAR……..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. PRATIMA DEVI, WIFE OF HARI MANDAL, RESIDENT OF VILLAGE-DEVA LAXMIPUR, P.S. AMDABAD, DISTRICT- KATIHAR. ………………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Ajay Kumar Thakur & Bimal Kumar, Advocates. For the State : Mr. Nirbhay Kumar Singh, A.P.P. For O.P.No.2 : Mr. Bhola Prasad, Advocate. ------------- O R D E R The sole accused of Complaint Case No.CA 69 of 2003 has preferred this application for quashing of the order dated 1.8.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Katihar, whereby he has taken cognizance against the petitioner. The complainant, Pratima Devi, impleaded herein as O.P.No.2, had initially filed a complaint case being no.1061 of 2002 on 25.6.2002 inter alia allegeing that the petitioner herein had committed rape on her at around 6.30 P.M. on 22.6.2002 and on the same being transmitted to the concerned police station Amdabad P.S. Case No.53 of 2002 came to be registered under Section 376 I.P.C. The police after due investigation submitted a final form and also lodged a non F.I.R. No.3 of 2002 under Sections 182 and 211 I.P.C. against the complainant and under Sections 193, 182 and 211 I.P.C. against the witnesses. - 2 - The complainant then filed a protest-cum-complaint petition which was numbered as CA 69 of 2003 wherein she had stated inter alia that as her husband is employed in Punjab she alongwith her sons and daughters lived alone in the house in the village. It was alleged that the accused used to visit her neighbour, Dinesh Chandra Mandal, and he had covetous and ogling eyes for her and on the date of occurrence while she was returning from the market after selling vegetables and enroute had reached near Veda School the accused gagged her mouth and at the point of pistol dragged her towards the field and having committed rape on her he fled away whereupon she raised hulla which attracted the witnesses who saw him fleeing away. She also alleged that the accused were in collusion with the police and hence the complaint. It has been submitted by the learned counsel for the petitioner that he is innocent and has been falsely implicated in this case as would be apparent from the fact that the police after due investigation in Amdabad P.S. Case No.53 of 2002 had found the case to be false and had recommended proceeding against the complainant under Sections 182 and 211 I.P.C. It has also been submitted that the falsity of the case would also be apparent from the fact that Lalan Mandal, the son, Hari Mandal, the husband, Dhaneshwar Mandal, the father and Jichchu Mandal alias Chhotu Mandal, the brother and Dora Devi, the mother, of the complainant had filed affidavits in court stating therein that the complainant had lodged the false case against the petitioner at the instance of the Mukhiya, Israful, who had assured to allot her the benefit of a Indra Awas and influenced thereby she had filed the false case against the petitioner who had - 3 - contested Israful for the post of Mukhiya at the last election. It has also been submitted that the complainant too had filed a petition under Section 257 Cr.P.C. in the court below stating therein that the case had been compromised between the parties and she was desirous of withdrawing the case as she had lodged the instant case at the instigation of some other persons and notwithstanding these facts the learned Magistrate had proceeded to take cognizance which only goes to indicate that the Magistrate had not applied his independent and judicial mind before passing the impugned order. Admittedly, the instant case on the basis of the protest petition has proceeded as a complaint case. The entire scheme of Chapter XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till the process is issued. This does not mean that he is precluded from being present when an inquiry is held by a Magistrate. He may remain present either in person or through a counsel with a view to be informed what is going on. But since the very question for consideration being whether he should be called upon to face an accusation he has no right to take part in the proceeding nor has the Magistrate any jurisdiction to permit him to do so. It would thus follow that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued nor can he examine any witness at the instance of such a person. Therefore, the affidavits filed by the relatives of the complainant and the petition under Section 257 Cr.P.C. filed by the - 4 - complainant were nugatory and having no value the learned Magistrate holding the inquiry could not have looked into these documents since they happen to be the matters extraneous to the proceeding before him. The Apex Court in the case of Ramgopal Ganpatirai Ruia Vs. State of Bombay (AIR 1958 SC 97) observed that in each case the Magistrate holding the preliminary enquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied he is not to commit. Then again in Chandra Deo Vs. Prokash Chandra (AIR 1963 1430) the Apex Court held that since the object of an inquiry under Section 202 Cr.P.C. is to ascertain whether the allegation made in the complaint are intrinsically true, the Magistrate acting under Section 203 Cr.P.C. has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion he is entitled to consider the evidence taken by him or recorded at the inquiry under Section 202 Cr.P.C. He is not entitled to rely upon any material besides this. Where there is prima facie evidence, even though an accused may have a defence that the evidence was committed by some other person or persons, matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. There is another aspect of the matter. Initially the complainant had filed a complaint which on being transmitted to the police had been numbered as Amdabad P.S. Case No.53 of 2002 wherein the police after due investigation submitted a final form. This was followed by a protest petition which on being converted was levelled as Complaint Case No.69 - 5 - of 2003 wherein inquiry was held and cognizance was taken. Where the prosecutrix was so adament to pursue the matter, it is difficult to reconcile as to how and why the relatives of the prosecutrix filed the affidavits in support of the petitioner and why subsequently the prosecutrix herself wished to withdraw the complaint petition unless the efforts were on to tamper with evidence. Even otherwise, an offence under Section 376 I.P.C. is not compoundable and in this context the petition filed by the complainant hardly has any worth. Then again the submissions on behalf of the petitioner that the relatives of the prosecutrix in their affidavits have stated that the prosecutrix had filed the instant complaint allured by the authors of Israful is a matter which is required to be proved by leading cogent and corroborating evidence. Mere statement by way of submissions is not sufficient to place reliance on such matters. Due regard being had to the facts and the circumstances of the case, I find no apparent illegality or impropriety in the impugned order passed by the learned Magistrate. There is no merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated:The 23rd of January, 2009. Pradeep Srivastava/A.F.R.