Dhrub Narayan Upadhyay, J. - (1.) THIS petition has been filed for quashing the entire criminal prosecution, arising out of P.C.R. Case No. 311 of 2002, T.R. No. 371 of 2003, registered under Sections 376, 323 and 34 of the Indian Penal Code and the order dated 11th February, 2003, whereby learned Magistrate has ordered to issue process against accused persons to face trial.
(2.) THE fact, in brief, is that a written report was lodged by the complainant against the petitioners. On the basis of said written report, District - Deoghar, Sub Division - Madhupur, Palajori P.S. Case No. 89 of 2001 dated 18th December, 2001 was registered under Sections 341, 323, 448, 376 and 34 of the Indian Penal Code and investigation proceeded ahead. When the informant felt that investigation is not proceeding fairly and impartially, she filed protest petition, raising her grievance with a prayer to keep the protest petition for future reference. It is alleged by the complainant that accused -Siyaram Kumar Rai, finding the complainant alone, entered into the house and committed rape on her. The alarm raised by the complainant attracted to her sister -in -law (GOTANI), who bolted the accused -Siyaram Kumar Rai inside the house and locked the door. Thereafter, remaining accused persons reached to the place and caused assault to the husband of the victim and got Siyaram Kumar Rai relieved. The police after due investigation submitted final report, stating the occurrence untrue, but the learned Magistrate considered the protest petition as a complaint, initiated enquiry and took cognizance vide order dated 11th February, 2003 and directed to issue summons against accused persons.
(3.) THE petitioners have challenged the criminal prosecution as well as the order impugned mainly on the following grounds: - (i) Protest petition filed by the complainant does not fulfill the requirement of Section 2(d) Cr.P.C. in which the complaint has been defined; (ii) There is allegation against accused -Siyaram Kumar Rai that he has committed rape, but the learned Magistrate has taken cognizance under Sections 376, 323 and 34 of the Indian Penal Code against all accused persons, including these petitioners; (iii) No offence under Sections 323 and 34 of the Indian Penal Code is made out because the contentions made by the complainant and witnesses do not attract the ingredient of Section 319 of the Indian Penal Code in which the word 'Hurt' is defined; (iv) The occurrence is not supported by medical evidence; and (v) The statements of witnesses are contradictory.;