NEELAM DEVI WIFE OF BISHWANATH PRASAD Vs. STATE OF BIHAR AND CHANDRA BHUSHAN PRASAD SON OF SHRADHANAND PRASAD

JUDGEMENT

(1.) THE informant of Jehanabad P.S. Case No. 409 of 2000 has prayed for quashing of the order dated 16.9.2005 passed therein by the learned Chief Judicial Magistrate, Jehanabad, whereby he has taken cognizance of offences punishable under Sections 448, 342, 376, 380 IPC against only three of the five FIR named accused and has exonerated accused Chandra Bhushan Prasad, impleaded as O.P. No. 2 herein, by accepting the final form submitted against him without hearing the petitioner, although a protest petition filed by him was pending on the records. A further prayer has been made for issuing direction to take cognizance against the said Chandra Bhushan Prasad in the above mentioned case.

(2.) According to the informant, Neelam Devi, as contained in her written report submitted to the police on 19.9.2000 she is a resident of Jafarganj within P.S. and District Jehanabad even as her husband carries on business in Gaya where he commutes every day and she is left alone in the house. It is alleged that at about 8 P.M. on 19.9.2000 accused Gopal Prasad asked her to open the door and taking him as her own as she opened the door Gopal and 4 others, whom she knew and identified, entered into the room and started inquiring about her husband and when the husband could not be found accused Gopal Prasad, Awadhesh Prasad Soni and Rajiv Ranjan Prasad Sinha along with her started searching for him in the rooms of the house and when they entered into the fifth room all the three persons took turns in committing rape on her even as accused Chandra Bhushan Prasad and the other stood guard. It is further alleged that all the persons were armed with pistols and it was at the point of pistol that the rape was committed. It is also alleged that while departing, Chandra Bhushan and Uma Shankar respectively took away all her ornaments and 5000/ - rupees in cash and tied her arms and legs and gagged her mouth. They left her in the room and locked the door from outside. They also threatened that if any voice is raised in future regarding partition her husband Bishwanath would be done to death and if any case was lodged she would face dire consequences. After she managed to free herself she claimed to have raised alarm, attracted whereby people of the neighbourhood arrived and one of them Rafique Alam is reported to have informed the police at about 9 P.M. over telephone and subsequently she claims to have gone to the police station at around 10.30 P.M. with her husband and submitted the written report.

(3.) THE grievance of the petitioner is that a clear case against accused Chandra Bhushan was made out from her written report and the materials available in the case diary but notwithstanding the same the police did not submit a charge sheet against him having accepted his plea of alibi without real inquiry into the matter. In this connection my attention was sought to be drawn to paragraphs 4, 15, 21 to 23 , 25 and 26 of the case diary. The further grievance of the petitioner is that although a protest petition was filed and pending in the case the learned Magistrate ignoring the same accepted the final report notwithstanding the fact that the prayer for bail by the said Chandra Bhushan on the ground of alibi has been rejected by the High Court. It was the further grievance of the petitioner that the acceptance of the final form by the learned Magistrate was illegal, vitiated and non sustainable in law.