Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 844 (PAT)

Ram Lal Paswan v. State Of Bihar

2014-08-05

ASHUTOSH KUMAR

body2014
Order Heard the counsels for the parties. 2. The petitioner has challenged the order dated 18.07.2011 / 19.07.2011, passed by the learned Chief Judicial Magistrate, Samastipur in Complaint Case No. 384 of 2008, whereby cognizance has been taken under Section 376 of the Indian Penal Code. 3. The complainant – opposite party no. 2 has alleged in her complaint that on 28.03.2008, while she was coming back to her home on foot, her villager Punit Paswan came on a rickshaw and asked her to sit on the rickshaw. The complainant sat on the rickshaw, but to her dismay, she found the petitioner also boarding the rickshaw immediately. The complainant is then said to have been taken to a desolate place on the rickshaw where she was ravaged by the accused persons. The aforesaid complaint lodged by the opposite party no. 2 led to the institution of Complaint Case No. 384 of 2008 for the offence under Section 376 of the Indian Penal Code. 4. Before commencing with an enquiry under Section 202 of the Code of Criminal Procedure, the learned Chief Judicial Magistrate got the allegations enquired into through the agency of the police. Annexure-3 is the report of the police regarding the occurrence. The police reported that an absolutely false and concocted case has been lodged by the complainant. Punit Paswan and the petitioner are related to each other and both the accused persons are in turn related to the complainant. Co-accused Punit Paswan is said to be the younger brother-in-law (Devar) of the complainant; whereas the petitioner has been reported to be the elder brother of the husband of the complainant – opposite party no. 2. The police further reported that the accused persons and the complainant both hail from a remote village and they have private dispute amongst themselves with respect to possession of land. 5. Be that as it may, in an enquiry under Section 202 Cr.P.C., the complainant gave her solemn affirmation. In her statement before the Court, the complainant has tried to improve upon the story and has introduced absolutely a new dimension to the prosecution version. In the complaint petition, the opposite party no. 2 has alleged that she was taken on the rickshaw to a particular place where she was raped by both the accused persons including the petitioner. In her statement before the Court, the complainant has tried to improve upon the story and has introduced absolutely a new dimension to the prosecution version. In the complaint petition, the opposite party no. 2 has alleged that she was taken on the rickshaw to a particular place where she was raped by both the accused persons including the petitioner. However, in her solemn affirmation, she has stated that while she was being raped by those two accused persons, a bus passed by and she has also named some of the persons, who saw the occurrence for themselves. In her solemn affirmation, she has also stated that some of the witnesses came down from the bus for the rescue of the complainant – opposite party no. 2. In the complaint petition, the opposite party no. 2 has stated that after she was subjected to such physical abuse, she went to the house of her cousin and thereafter lodged the case. However, in her solemn affirmation, she has given a go bye to the original prosecution version and has stated that Ganeshi Paswan was also present at the place of occurrence and he took her to his house. 6. From the perusal of the records, it appears that absolutely a false and concocted case has been lodged by the complainant – opposite party no. 2. The narration in the complaint petition does not appear to be probable. The falsity of the allegations further appears from the fact that the complainant has completely remained silent with respect to the relationship of the accused persons vis-à-vis her. 7. True it is that at the stage of taking cognizance, a roving enquiry is not to be held by the learned Magistrate. All that is required is to see whether the offence, on the face of the allegations made in the complaint, is made out or not. However, if the allegations reflect an ulterior motive and for the purpose of falsely implicating the accused persons, such an aspect cannot be lost sight of while exercising jurisdiction under Section 482 Cr.P.C. Let it be again reiterated, as noticed earlier, that finding the allegations to be absolutely absurd and improbable, the learned Chief Judicial Magistrate, instead of straight way embarking upon an enquiry under Section 202 Cr.P.C., asked for an enquiry in the matter by a third agency, namely, the police. The enquiry report reflects that the present case is nothing, but a bundle of lies. However, the court below, on being impressed by the fact that there is positive allegation of the petitioner and the other accused person having committed rape, took cognizance for the offence under Section 376 I.P.C. 8. Considering the prosecution case in totality including the enquiry report, which also would form part of the record of the present case, this Court feels that the order taking cognizance is not sustainable in the eyes of law. 9. Allowing such a case to remain alive would only put the legal process under some kind of ridicule. Consequently, the order taking cognizance is set aside. 10. The application is allowed.