IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38072 of 2009 MD.SABIR HUSSAIN @ JIGAR, SON OF LATE ABDUL KARIM, RESIDENT OF VILLAGE CHANP TOLA TEGHRA, BLOCK HUSSAINGANJ, P.S. PACHRUKHI (SARAI) SIWAN, DISTRICT SIWAN. ---- PETITIONER Versus 1. THE STATE OF BIHAR. 2. AMNA KHATOON, DAUGHTER OF SAMSHER MIAN, RESIDENT OF VILLAGE CHANP TOLA TEGHRA, P.S. PACHRUKHI (SARAI) SIWAN, DISTRICT SIWAN. --- OPPOSITE PARTIES ----------- 4 7.4.2011 Heard learned counsel for the petitioner and the State. Nobody has appeared despite notice to the opposite party no. 2 to pursue this case on her behalf. The allegation in the first information report is that the petitioner started a sexual relationship with the opposite party no. 2. The relationship continued for a period of three years on the assurance of the petitioner that he would marry the informant. After three years however, he did not marry her and his marriage was fixed with a relative of his and as such this case has been instituted against the petitioner. Prima facie on consideration of the allegations made in the first information report, it appears that a case is not made out under section 376 of the Indian Penal Code as the person concerned was major and the fact that she continued to have physical relationship with the petitioner for three years, does not indicate the elements which constitute rape, are made out in the facts of this case. At the most the petitioner could have complained that she has been cheated by the informant. I also find that no offence is committed under Section 419 of the Indian Penal 2 Code. The definition of section 419 of the Indian Penal Code is cheating by impersonation. The petitioner has not pretended to be another man, and thereby tricked the informant as such no offence under Section 419 is made out. I thus, quash the order of cognizance dated 20.8.2009 taken under Sections 376 and 419 of the Indian Penal Code. This application is allowed to the extent indicated aforesaid. However, the matter is remanded to the Chief Judicial Magistrate, Siwan who is in seisin of Pachrukhi P.S. Case No. 30 of 2008, Trial No. 3459 of 2009 to consider the entire matter after perusal of the First Information Report. Sanjay ( Sheema Ali Khan, J.)