KALIDAS MUKHERJEE, J. - (1.) This is an application under Section 401 and 482 of the Code of Criminal Procedure praying for setting aside the order dated 18.2.2009 passed by learned Additional Sessions Judge, Malda in Sessions Trial No. 15 of 2009 corresponding to Sessions Case No. 23 of 2009 arising out of Harishchandrapur P.S. case No. 143 of 2005 under Section 376 of the Indian Penal Code.
(2.) The prosecution case, in short, is that the victim filed a complaint before the learned Chief Judicial Magistrate, Malda which was sent to the P.S. under Section 156(3) of the Cr.P.C. It has been alleged that on 23.4.2005 the petitioner and another, namely, Abdul Mannan alias Pannan committed rape upon her near Tulsihata Bora Bridge and thereafter dropped her near Old Talli Bhata of Kapaichandi Village. The learned Magistrate upon perusal of the complaint was pleased to transfer the case to the learned Sub-divisional Judicial Magistrate, Malda for enquiry and trial. Subsequently, on 02.8.2005 the complainant filed an application praying for withdrawal of complaint on the ground that she was unable to produce witnesses to substantiate the allegation and, as such, prayed for withdrawal of the complaint with liberty to file a fresh complaint and for sending the same to the P.S. for investigation.
(3.) Upon consideration of the said application, the learned Magistrate vide Order dated 02.8.2005 dismissed the said complaint under Section 203 Cr.P.C. with liberty to file a fresh complaint for investigation under Section 156(3) Cr.P.C. Pursuant to the liberty given to the complainant, the complaint being No. 1050C/2005 was filed on 5.8.2005 against the accused/petitioner and Abdul Mannan before the learned Magistrate on the self-same facts and the learned Magistrate directed the O.C. of Harishchandrapur P.S. to investigate the matter under Section 156(3) Cr.P.C. Accordingly, the O.C. Harishchandrapur P.S. Case No. 143 of 2005 dated 15.8.2005 was started against the accused/petitioner and Abdul Mannal under Section 376 I.P.C. Being aggrieved by the said order, passed by the learned Magistrate the petitioner filed criminal revision bearing No. 43 of 2005 before the learned Sessions Judge, Malda. The learned Sessions Judge vide Order dated 24.8.2005 dismissed the said Revisional Application.;