IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23779 of 2007 KABI MAHTO, Son of Late Baleshwar Mahto at Pachpaika, P.S. Ujiarpur, District Samastipur ….. Petitioner Versus 1. STATE OF BIHAR 2. Anita Devi, W/o Siya Poddar, Village Pachpaika, P.S. Ujiarpur, District Samastipur ….. Opp. Parties. ----------- For the petitioner : Mr. Alok Kumar Sinha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. O.P. No. 2 : None O R D E R The petitioner who is the sole FIR named accused of Ujiarpur P.S. Case No. 115 of 2006 giving rise to Sessions Trial No. 52 of 2007 had prayed for the quashing of the order dated 9.1.2007 passed in the police case by the learned Sub Divisional Judicial Magistrate, Dalsingsarai, alleging commission of offences at the hands of the sole accused and on the same being sent to the concerned P.S., the aforesaid police case under sections 323 and 376/511 IPC was registered. After due investigation the police submitted a charge sheet under the very sections wherein the case was registered. The prosecution case in brief is that the informant, a mother of five children, on 28.7.2006 even as her husband was working as an agricultural labourer in the fields of the accused, went to the accused demanding proper wages for her husband. She was asked to come to his house in the evening to receive the wages. It is said that on reaching the house of the petitioner she was told by the household members to go to the guava orchard 2 whereupon she went to the orchard where she was made to sit. It is alleged that the accused went away and returned shortly in an inebriated state and catching hold of the informant threw her on the ground and removing her sari attempted to commit rape and when she raised alarm one of her small children and other witnesses arrived whereupon the accused caught hold of the informant and started assaulting her. It is alleged that when her child rushed to her rescue he too was assaulted. A panchayati was scheduled for 30.7.2006 which he refused to attend and when the informant on the advise of the co-villagers went to the police station they refused to register a case. It has been submitted on behalf of the petitioner that the informant is a lady of questionable character who is habituated in filing cases against people in order to extort money and with that intention the instant case had been filed on false and frivolous allegations. Referring to paragraph 5 of the case diary, which is the statement of her husband, it was pointed out that the husband had stated before the police that he is a rickshaw puller and on the relevant date when he returned home he was informed by his wife that his son Amarjit Poddar had plucked guava from the orchard of the petitioner, for which he had been assaulted and that she, who was working in the nearby field, had gone to his rescue but there is no mention therein of any rape having been attempted on his wife. It was further submitted by the learned counsel for the petitioner that in her re statement the informant had 3 given a completely different story by stating that she had been assaulted by the petitioner with bad intention and she had not stated about her sari being removed or of an attempt being made to commit rape. In support of the informant being a lady of questionable character and instituting frivolous litigations against other co-villagers to extort money a list of cases had been mentioned and copies of two complaint petitions have been appended as Annexure 4 series. Finally it was submitted that even if the accusations are accepted at their face value at best a case under section 354 IPC can be said to have been made out against the petitioner. Unfortunately the petitioner in the instant application has prayed for the quashing of order taking cognizance but has not questioned the validity or bonafides of the subsequent order committing the case to the court of sessions. The informant, notwithstanding valid service of notice, has preferred to remain absent and as such the submissions of the learned counsel for the petitioner remain unrebutted. It is true that the High Court has inherent powers to act ex debitio justitiae to do that real and substantial justice for administration for which alone it exists or to prevent an abuse of the process of the Court but it will definitely not interfere where alternative remedy as available. The order of commitment could have been questioned in a revision preferred against the same where the revisional court could have set aside the order of commitment. 4 The challenge by the petitioner to the order taking cognizance at a belated stage after the case had been committed to the court of sessions cannot be appreciated. The petitioner can seek his remedy under sections 227 and 228 Cr.P.C. before the Sessions Court. In view of the discussions made above I do not find any merit in this application which is dismissed. However, the petitioner shall be at liberty to move the Sessions Court under sections 227 and 228 Cr.P.C. and in the event the Sessions Court is moved under those provisions the Court will take into consideration the materials placed and submissions advanced on behalf of the accused and pass orders in accordance with law due regard being had to the facts that at the stage of sections 227 and 228 Cr.P.C. the defence is entitled to put forward their case of false and frivolous implication and also bring on record documents in support thereof. Patna High Court, Patna. Dated : The 28th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)