JUDGMENT 1. - This petition under section 482 Cr.P.C. is directed against the order dated 26.5.1999 by which cognizance has been taken against the petitioners for the offences under sections 148, 458, 376/149 & 365/511. Further cognizance has been taken under section 376 1PC against Wajir Khan, Rupe Khan, Kale Khan, Pale Khan, Binder Khan rejecting the final report submitted by the police after investigation in a case of FIR No. 1/98 P.S. Sangaria registered on the report of complainant-Shakina Bano. 2. The facts mentioned in this report are that Game Khan, younger brother of her husband wants to usurp 42 bighas of land of her husband. On 18.12.1997, all the petitioners came in a jeep and forcibly entered into the house. One person was armed with pistol. All the petitioners dragged her out of the house to put her in the jeep. The neighbours Shravan Khan, Tota Singh, Dharam Singh, Pal Singh, Rajendra Singh and other persons came there then the petitioners ran away from the scene of occurrence threatening of dire consequences. As stated above, the police after investigation submitted the final report that no such offence took place with the complainant. The complainant filed a complaint on 27.2.1998 that the police has to investigated the case properly and favoured the petitioners. The learned Judicial Magistrate called for the report from the police which was submitted on 28.7.1998. The complainant was given an opportunity to produce her evidence in the enquiry under sections 200 & 202 Cr.P.C. She examined Tota Singh, Kartar Singh, Sharvan Khan, Rajendra Singh, Sadiq Mohammad and Rani, daughter of Shakina Bano. Rani while narrating the incident also alleged that rape was committed on her and her mother. Her brother Sadiq Mohd. was threatened with pistol, completely undressed and he was forced to lie upon her mother. At this stage, the complainant filed an application with the allegations of the same facts as stated by Rani. She further stated in the application that she did not stated these facts in the complaint for fear of social stigma but Sadiq and Rani have given details of incident. Therefore, she and her son Sadiq should be further examined under section 202 Cr.P.C. The learned Judicial Magistrate allowed the application and further recorded the statement of the complainant and his son Sadiq Mohd. by order dated 12.3.1999. Therefore, she and her son Sadiq should be further examined under section 202 Cr.P.C. The learned Judicial Magistrate allowed the application and further recorded the statement of the complainant and his son Sadiq Mohd. by order dated 12.3.1999. After hearing the arguments and on considering the papers submitted with the final report and the statements recorded during the enquiry under sections 200 & 202 Cr.P.C., the learned Judicial Magistrate passed the impugned order of taking cognizance as stated above. 3. I have heard the learned counsel for the petitioners and learned Public Prosecutor. It is contended on behalf of the petitioners that the complainant's case has not been supported by her husband Khalil Khan. The learned Judicial Magistrate seriously erred in allowing the application and recorded the supplementary statement of the complainant and her son Sadiq Mohd. after about one and half years of the incident. There is no provision for recording the supplementary statement under sections 200 & 202 Cr.P.C. It is further argued that no medical examination was conducted because there were no allegations of the offence. The complainant did not file any report of incident alleged to have occurred on 18.12.1997 and an application was filed after 14 days i.e. 31.12.1997 to the Dy.S.P. on which the date of incident has been mentioned 31.12.1997. Since the complainant was not supported by any independent witness, the police submitted the final report. It is contended that the FIR and complaint did not disclosed the ingredients of the offences for which the cognizance has been taken on the face of it and the proceedings deserve to be quashed. 4. Learned Public Prosecutor has opposed the petition on the ground that the impugned order has been passed on the basis of the statement of the complainant and the witnesses which does not require interfere in the exercise of the inherent powers under section 482 Cr.P.C. The case is made out on the basis of the statement of the complainant and atleast statement of Rani. It was also argued that if deemed necessary in the inherent of justice further enquiry can be made by the learned Judicial Magistrate by recording the supplementary statement. 5. I have perused the impugned order and also considered the rival contentions. It was also argued that if deemed necessary in the inherent of justice further enquiry can be made by the learned Judicial Magistrate by recording the supplementary statement. 5. I have perused the impugned order and also considered the rival contentions. The impugned order reveals that on the final report, complainant lodged a protest petition/complaint under section 200 Cr.P.C. Learned Judicial Magistrate recorded the statement of the complainant-Mst. Shakina and the witnesses Tota Singh, Kartar Singh, Sharvan Khan, Rajender, Sadiq Mohd. and Rani. Learned Judicial Magistrate while allowing the application of the complainant recorded the supplementary statement of the complainant-Shakina on 3.4.1999 and also of her son Sadiq Mohd. The learned Judicial Magistrate has observed that it prima facie appears from the statements of Shakina, Sadiq Mohd. and Rani that the petitioners trespassed into the house of the complainant and violated her body and also undressed and forced her son Sadiq Mohd. to lie on her at the point of pistol. However, the complainant and his son did not state about the violation of the body of Rani by accused-Kale, therefore, prima facie it is not made out that Kale committed an offence of rape on Rani. In view of these observations, learned Addl. Chief Judicial Magistrate passed the impugned order as stated above. 6. It is contended on behalf of the petitioners that learned trial Court has not considered the papers filed by the police in the final report while passing the impugned order. The impugned order has been passed merely on the supplementary statements of Shakina and her son Sadiq Mohd. whereas no allegations of rape were leveled in the First Information Report and in the complaint as well as in her statement under section 200 Cr.P.C. Therefore, it is a clear case of afterthought and complete exaggeration to rope in the petitioners in a serious nature of offence under section 376 IPC which is an abuse of the process of Court because the learned trial Court is not empowered under the provisions of Sections 200 & 202 Cr.P.C. to further examine the complainant-Shakina and her son. Hence the statements, recorded by the learned trial Court could not be the basis of cognizance against the petitioner. Hence the statements, recorded by the learned trial Court could not be the basis of cognizance against the petitioner. It is argued that trial Court has taken cognizance for the offence triable by the Sessions but all the witnesses have not been examined in compliance of the second proviso to 202 Cr.P.C. which provides that if the offence complained of is triable exclusively by Court of Sessions, the complainant shall be called upon to produce all the witnesses and examine them on oath. I have bestowed my careful attention to the above contentions. The learned Judicial Magistrate has taken cognizance for the offences triable by Sessions Court and therefore the second proviso to Section 202 Cr.P.C. clearly applied in this case. According to the complainant, her neighbours Shrawan Khan, Tota Singh, Darshan Singh, Pal Singh and Rajender Singh came on the spot on her raising hue and cries. It is revealed in the impugned order that the complainant has examined herself, Sadiq Mohd. and Rani. Other witnesses examined are Tota Singh, Kartar Singh, Shrawan Khan and Rajendra Singh. Thus Darshan Singh and Pal Singh, two witnesses have not been examined by the complainant as required under the proviso referred above of Section 202 Cr.P.C. 7. It is also revealed from the impugned order that the learned Judicial Magistrate has not considered the papers filed in the final report. While passing an order for taking cognizance, it is also essential for the trial Court to consider the statements taken by the police during investigation. The learned counsel for the petitioner finds support from Jagdish Ram v. State of Rajasthan reported in 1988 (2) WLN 311 wherein after considering the pronouncements of the Hon'ble Supreme Court AIR 1960 SC 1113 and AIR 1962 SC 876 it has been laid down that under section 203, the Magistrate has to form his opinion on the basis of the statements of the complainant and the witnesses and also the result of the investigation or enquiry if any. Section 203 clearly envisages consideration of the result of the enquiry or investigation if any under section 202 also besides the statements of the complainant and the witnesses. Of course, the learned Judicial Magistrate is not fettered in any way and he can base his order after judicial consideration whether there are sufficient grounds for proceedings on the complaint or not, 8. Of course, the learned Judicial Magistrate is not fettered in any way and he can base his order after judicial consideration whether there are sufficient grounds for proceedings on the complaint or not, 8. Both the above provisions have not been complied with in this case before passing the impugned order by the learned Addl. Chief Judicial Magistrate and therefore on these two grounds alone, the impugned order is liable to be set aside in the interest of justice or to prevent the abuse of the process of Court under section 482 Cr.P.C. 9. In the result, this petition under section 482 Cr.P.C. is allowed and the impugned order dated 26.5.1999 is hereby set aside and the matter is remanded to learned Judicial Magistrate to consider the material before him as observed above and to pass order afresh on the complaint under section 203 Cr.P.C. in accordance with law.Petition allowed and Case remanded. *******