ATAUR RAHMAN @ MD. ATAUR RAHMAN vs THE STATE OF BIHAR

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.31491 of 2019
CNR No. BRHC010398032019
Arising Out of PS. Case No.-2 Year-2017 Thana- MAHILA PS District- Jehanabad
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1. Ataur Rahman @ Md. Ataur Rahman Son of Late Najibur Rahman Resident
of Mohalla - Shekh Alam Chak, Jehanabad, P.S.- Jehanabad, District-
Jehanabad
2. Abdual Barik @ S.M. Mazahrul Bari Son of Late Syed Abdul Bari Resident
of Mohalla - Millat Lane Fida Hussain Road, Jehanabad, P.S.- Jehanabad,
District - Jehanabad
3. Md. Shaukat Son of Late Md. Mohiuddin Resident of Village - Jehana, P.S.-
Atri Jahana, District - Gaya
4. Azzu Ahmad Son of Islam Miyan Resident of Mohalla - Millat Lane Fida
Hussain Road, Jehanabad, P.S.- Jehanabad, District - Jehanabad
... ... Petitioners
Versus
1. The State of Bihar
2. Rina Sinha Wife of Sri Ramswaroop Singh Resident of Village - Kako, P.S.-
Kako, District- Jehanabad
... ... Opposite Parties
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Appearance :
For the Petitioners : Mr. Madanjeet Kumar, Adv.
Mr. Rajeev Ranjan
For the Informant : Dr. Alok Kumar Sinha, Adv.
For the State : Mr. Arun Kumar Pandey, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 29-10-2026
Heard the parties.
2. The present petition has been filed for quashing
st
the order dated 02.02.2019 passed by learned 1 Additional
District and Sessions Judge-Cum-Special Judge, Jehanabad,
in connection with Jehanabad Mahila Police Station Case No.
02 of 2017 through which cognizance was taken for the

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offfences punishable under section 376(D)/34 of the Indian
Penal Code and Section 4 of POCSO Act.
3. The prosecution case is that informant is a
Physical Teacher posted in middle school, Kako, Jehanabad.
On 15.01.2017, her minor deaf and dumb daughter who
used to live with her mother in school was gang raped by
accused persons on the roof of school. It was found that
blood was coming out from her private part. Prior to the said
occurrence accused persons also outrage the modesty of her
daughter. She also asserted that to know the veracity of her
allegation, medical examination of her daughter and semen
test of accused persons be made out then truth will come
out.
4. On the basis of written application of the
informant regarding aforesaid occurrence, the present FIR
was lodged as Jehanabad Mahila P.S. case No. 02 of 2017
with the police for the offences punishable under Sections
376D/ 34 of the Indian Penal code and also Section 4 of the
POCSO Act. The Police after investigation submitted final
report against four named co-accused persons including this

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petitioner.
5. The cognizance was taken by learned Judicial
Magistrate taking a different note after perusal of case diary,
charge-sheet, protest petition, supplementary protest
petition, statement of the informant under Section 164 of
Cr.PC, medical report, FSL Report etc. against all four
named co-accused persons/petitioners for the offences
punishable under Sections 376D/34 of the IPC and Section
4 of the POCSO Act.
6. It is submitted by learned counsel appearing for
petitioners that petitioners were implicated out of oblique
motive. It is submitted that the minor daughter of the
informant a is deaf and dumb girl and taking advantage of
her physical condition, the petitioners were implicated with
whom the informant/mother of the victim was not in good
relation. It is submitted that the allegation of bleeding which
was found on yellow jeans and dark brown panty of victim
was due to menstrual cycle and said fact was also opined by
the medical board. It is submitted that no injuries were
found in or around the private part or any body part of the

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victim/daughter of the informant aged about 12 years as to
suggest that she was subjected to gang rape by co-accused
persons, as alleged. It is also pointed out that police
submitted closure report after investigation and taking a
different view without assigning any reasons, learned Judicial
Magistrate took cognizance for heinous offences, against
Teachers and Headmasters of the school, appears not
justified and on this score alone, the cognizance order be
set-aside. In support of his submission, learned counsel
relied upon the legal report of Hon’ble Supreme Court as
available through Mrityunjay Kumar Chaudhary Vs.
State of Bihar and Anr. reported in 2026 Livelaw (SC)
1043).
7. It would be apposite to reproduce the paragraph
no. 8 of the Mrityunjay Kumar Chaudhary case (supra)
which are as under:-
“ 8. On the consequence of a final report
filed by the Police, which is termed a ‘closure report’, we
extract herein paragraph 16 of Brajesh Kumar alias
Birjesh Kumar Singh v. State of Bihar2, (authored by
one of us, K. Vinod Chandran, J.):-
‘16. Ram Naresh Prasad v. State of
Jharkhand(2009) 11 SCC 299 held that when the police
file a report, colloquially termed a ‘closure report’;
finding no sustainable case made out, the Court cannot
direct a charge sheet to be filed, but could always take
cognizance on the basis of the material in the report or

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direct further investigation. H.S. Bains v. State (U.T. of
Chandigarh) (1980) 4 SCC 631 & Ramswaroop Soni v.
State of M.P. (2020) 18 SCC 327 reiterated that when a
closure report is filed finding no offence made out, the
Court has three options; (i) to accept the same and close
the proceedings or (ii) take cognizance of the matter on
the materials in the report or (iii) direct further
investigation. It is thus open to the Magistrate on
submission of a closure report to look into the material
facts disclosed in the report and form an opinion as to
whether it constitutes an offence and take cognizance of
the offence under Section 190(1)(b). To buttress this
position, Abhinandan Jha1967 SCC OnLine SC 107
made reference to Section 169 of the Code which
provides that even if the police officer finds on
investigation that there is no reasonable ground or
sufficient evidence to put the accused on trial, the officer
while releasing the accused has to take a bond for
appearance before the Magistrate, if required. The
primacy of the Court to take cognizance or deny it is the
law discernible from the very provisions of the CrPC.
”
8. Learned counsel appearing for the informant
while opposing the quashing petition submitted that all four
co-accused persons are named in the FIR facing specific
allegation of gang rape.
9. Considering the submission and upon perusal of
FIR, it appears that all accused petitioners are named in FIR
facing allegation of gang rape upon minor daughter of the
informant aged about 12 years, who was the student of class
th
VI of the same school. It also transpired from the impugned
order that this matter travelled up to Human Rights
Commission complaining the partisan role of Senior Police
Officer to destroy/temper with the evidence including I.O.,

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S.D.P.O., and SP, Jehanabad. During investigation, the
occurrence was also supported by the informant, through her
statement which was recorded under Section 164 of the
Cr.PC.
10. This Court is of considered view that none
finding of injury as submitted aforesaid by learned counsel
does not lead to conclusion ipso facto that rape was not
committed upon as rape is a legal finding not a medical one.
Reliance must be place on the judgment of Hon’ble Supreme
Court as available through State of Tamil Nadu V. Ravi @
Nehru reported in (2006) 10 SCC 534 . This Court is also
of the view that submission raised regarding blood stains
available on panty and jeans of the victim that same was
due to menstrual cycle or due to alleged gang rape is a
disputed fact, which cannot be ascertained while hearing the
present petition as same can be ascertained during the trial
only. It also transpires that the cognizance order is well
reasoned, which passed upon the materials available on
record like FIR, charge-sheet, statement of the informant
recorded under Section 164, FSL Report etc. No doubt,

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learned Jurisdictional Magistrate is duly empowered under
the law to take a different view against the closure report,
need not any detailed discussion in this regard.
11. It would be apposite to reproduce the
paragraph no. 15 of the Ravi @ Nehru case (supra)
which are as under:-
“15. We may also notice the opinion
expressed by Modi in Medical Jurisprudence and
Toxicology (21st Edn.) at p. 369 which reads thus:
"Thus, to constitute the offence of rape, it is
not necessary that there should be complete penetration
of penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora
or the vulva or pudenda, with or without emission of
semen, or even an attempt at penetration is quite
sufficient for the purpose of the law. It is therefore quite
possible to commit legally, the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer should
mention the negative facts in his report, but should not
give his opinion that no rape had been committed. Rape,
is crime and not a medical condition. Rape is a legal
term and not a diagnosis to be made by the medical
officer treating the victim. The only statement that can
be made by the medical officer is that there is evidence
of recent sexual activity. Whether the rape has occurred
or not is a legal conclusion, not a medical one."
12. In view of aforesaid, this Court is convinced
enough that there is no occasion to interfere with the
st
cognizance order dated 02.02.2019 as passed by 1
Additional District and Sessions Judge-cum- Special Judge,
Jehanabad in Jehanabad Mahila P.S Case No. 02 of 2017.
13. Accordingly the present petition stands

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dismissed.
14. Let the copy of the judgment be sent to
learned trial court forthwith with TCR, if any.

(Chandra Shekhar Jha, J.)
Aniket/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 30.10.2026
Transmission Date 30.10.2026