Chhathu Sah and Another vs The State of Bihar and Another

M.L. Visa, J.—Heard. This application by the petitioners has been filed for quashing the order dated 11.2.2003 passed in Criminal Revision No. 376 of 2002 dismissing the revision which was filed by the petitioners against the order dated 27.9.2002 passed by the SDJM, Sikrahna at Motihari in Ghorasahan P.S. Case No. 133 of 2001 taking cognizance under sections 376 and 379 / 34 of the Indian Penal Code.

Learned counsel of petitioners submits that in the FIR the prosecutrix nowhere has levelled allegation of rape against the petitioners and police after investigation submitted final form declaring the case of insufficient evidence but the learned SDJM disagreeing with this report took cognizance of the offence u/s 376 of the Indian Penal Code and when petitioners challenged that order in revision the same was dismissed observing that a case under sections 376 / 511 of the Indian Penal Code is made out against the petitioners.

From the impugned order which has been passed in Criminal Revision No. 376 of 2002. I find that the Sessions Judge has rejected the revision considering the materials on record observing that a case under sections 376 / 511 is made out against the petitioners and that the offence under sections 376 / 511 IPC is also triable by the court of Session. It further appears that the Sessions Judge relying on an authority reported in the case of Lallan Choudhary and Others Vs. The State of Bihar has observed that if from the facts the court of Session comes to a conclusion that no offence is made out then to discharge the accused u/s 227 of the Code of Criminal Procedure.

I find nothing to disturb the order passed by the learned Sessions Judge in Criminal Revision No. 376 of 2002. After commitment of the case to the court of Session it is for the court of Session to see that from the materials available on record what offence, prima facie, is made out and it is for the court to decide whether in the present case, offence u/s 376 IPC or 376 / 511 is made out or no case at all is made out against the petitioners who have been made accused in this case and after considering all the materials on record including the plea raised by the petitioners to pass necessary order in accordance with law. With this observation, this application is dismissed.