JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Rajesh Kumar, the learned counsel appearing for the petitioner, Mrs. Nehala Sharmin, the learned counsel appearing on behalf of the respondent State and Mr.. Anil Kumar Singh, the learned counsel appearing on behalf of the O.P. No. 2. 2. This petition has been filed for quashing of the order taking cognizance dated 22.10.2020 passed by the learned Judicial Magistrate, 1st Class, Bokaro in connection with Mahila P.S. Case No. 34 of 2019, G.R. No. 385 of 2020 pending in the court of learned Judicial Magistrate, 1st Class cum Additional Civil Judge (Junior Division) Bokaro. 3. The F.I.R. has been registered alleging therein that the informant of this case is Sona Kumari who alleged in her Fardbeyan that she is working in a beauty parlor of Binod Kumar who is also employee of Government of Jharkhand. It is further alleged that in the year 2016 prior to two days of Holi, accused namely Binod Kumar arrived in the shop at about 7:00 p.m. for calculation of income-expenditure and he stopped the informant in the shop itself and asked her not to go to her house and thereafter, he committed rape upon her. It is further alleged that when informant started weeping, accused Binod Kumar told to her that he is unmarried and he will solemnized marriage with her. Informant disclosed entire facts to her mother and brother. It is further alleged that accused Binod Kumar came to her house also and told to the family members of the informant that he will solemnize marriage with the informant and thereafter, he started visit in her house frequently and started establishing physical relationship with her and on the point of marriage, he always avoid the same on one and another pretext. It is further alleged that informant has become pregnant in May 2018 and when the matter was disclosed to the accused Binod Kumar, then accused Binod Kumar along with his bhabhi namely Abha Devi had approached the informant where bhabhi of the accused told her that both families will have to face disrepute in the society and so she advised her to abort the pregnancy and it is further alleged that she has been given two types of medicine by them and thereafter alleged that on 15.09.2019 the accused namely Binod Kumar was ready to perform marriage with the informant and the informant along with her mother and brother reached at Ram Mandir, Bokaro on 15.09.2019 at about 11.00 a.m. and waited till 1.00 p.m. but accused Binod Kumar had not reached there. It is further alleged that when she called the accused namely Binod Kumar then he refused to solemnize marriage with her. 4. Mr. Rajesh Kumar, the learned counsel appearing for the petitioner submits that the petitioner is a lady and related with the main accused Mr. Binod Kumar. He submits that the petitioner has earlier moved before this Court in Cr. M.P. No. 1623 of 2020 which was allowed by order dated 14.10.2020 and order taking cognizance dated 06.05.2020 was quashed and the matter was remitted back to the learned court for passing a fresh order in accordance with law. He submits that pursuant to that, the learned court has again taken cognizance by the impugned order dated 22.10.2020.He submits that the learned court has taken cognizance under section 376, 417 and 313/ 34 of the I.P.C against this petitioner as well as the main accused Mr. Binod Kumar. He draws the attention of the Court to the impugned order and submits that the learned court has taken cognizance under section 376 however he has kept the file in personal file for final disposal. He submits that once the cognizance is taken under section 376 IPC, the same shall be triable by the court of Sessions. He further submits that so far sections 313 and 417 IPC are concerned, these two sections are also not attracted so far this petitioner is concerned. According to him, it is well settled that a lady cannot be prosecuted under section 376 of the I.P.C and the order taking cognizance is non-application of judicial mind. He further submits that so far sections 313 and 417 IPC are concerned, these two sections are also not attracted so far this petitioner is concerned. According to him, it is well settled that a lady cannot be prosecuted under section 376 of the I.P.C and the order taking cognizance is non-application of judicial mind. On these grounds, he submits that the entire criminal proceeding may kindly be quashed so far this petitioner is concerned. 5. Mr. Anil Kumar Singh, the learned counsel appearing on behalf of the O.P. No. 2 submits that there are allegations so far this petitioner is concerned of administering two tablets and due to that miscarriage has taken place. According to him section 376 IPC may not apply but section 417 and section 313 of the IPC are attracted. On these grounds he submits that this Court may not interfere at this stage. 6. Mrs. Nehala Sharmin, the learned counsel appearing for the respondent State submits that the learned court has rightly taken cognizance and trial is still pending and the petitioner may take all the grounds before the learned court. 7. In view of the above submissions of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record and looking to the F.I.R. it is crystal clear that this petitioner has got no role so far section 376 IPC is concerned as she has only gone to the place of the victim in the capacity of sister in law of Binod Kumar who is the main accused to convince for marriage after abortion. The allegations are there that two tablets have been advised to be taken by Binod Kumar as well as this petitioner and how section 376 IPC is made out so far as this petitioner is concerned who is a lady, the learned court has failed to appreciate this. A reference may be made to the case of Priya Patel vs. State of M.P. and Another, 2006 (4) Eastern Criminal Cases 86 (SC). Paragraph nos. 8 and 9 of the said judgment is quoted below: “(8) A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Paragraph nos. 8 and 9 of the said judgment is quoted below: “(8) A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to “gang rape.” The language of sub-section (2)(g) provides that “whoever commits “gang rape” shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. “Common intention” is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. “Common intention” denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression “in furtherance of their common intention” as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. The expression “in furtherance of their common intention” as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g). (9) The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard.” 8. Section 313 speaks that without consent if miscarriage is taken place that section will be attracted. Section 417 of the IPC is the punishment for cheating and for making out the case of cheating, from the very inception the intention is required to make out the case of cheating, which is lacking in the case in hand. Further considering that the learned court has taken cognizance under section 376 IPC and kept the file in his personal file for trial and disposal whereas section 376 IPC is required to be tried by the learned court of Sessions and in this view of the matter, this order is again a cryptic order and so the order taking cognizance is not in accordance with law. 9. In view of the above discussion, the order taking cognizance dated 22.10.2020 is set aside. The matter is remitted back to the concerned learned court to pass a fresh order in accordance with law. 10. Cr. M.P. No. 2748 of 2021 stands disposed of. 11. Pending petition if any also stands disposed of. 12. Interim order is vacated.