IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.3513 of 2009 1. SANTOSH KUMAR, SON OF MANIKANT RAI. 2. MANI RAI @ MANIKANT RAI, S/O. LATE LAL MOHAN RAI. 3. PAPPU RAI, SON OF MANI KANT RAI. 4. LALLU RAI, S/O. MANI KANT RAI. ALL R/O. VILL. – CHIKNI, P.S. – BARHARA, DISTT. – PURNEA. ............................... PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. SANJO KUMARI, D/O. SATO RISHI, RESIDENT OF VILLAGE – CHIKNI, P.S. – BARHARA, DISTT. – PURNEA. .................. OPP. PARTIES. ----------- For the Petitioners :- Mr. Amish Kumar, Advocate. For the O.P No. 2 :- Mr. Amit Kumar Anand, Advocate. For the State :- Mr. Hirday Prasad Singh, A.P.P. 04/ 10.01.2011 Heard. This criminal miscellaneous has been filed for setting aside the order dated 01.07.2008 passed by the Sessions Judge, Purnea in Cr. Rev. No. 110 of 2006 by which he has confirmed the order taking cognizance by order dated 04.02.2006 in Complaint Case No. 662 CA of 2005 rejecting the revision petition. The prosecution case as alleged that while the complainant was cutting the grass in a maize field then Santosh came throw her on the ground and pointed dagger with intention to outrage her modesty and tried to rape her. On the complaint the complainant was examined on solemn affirmation and witnesses examined and 2 cognizance taken under Section 354 and 3(X) of the SC/ST Act. Against the order taking cognizance a revision was preferred before the District Judge taking a defence that the petitioners are also a member of Scheduled Tribe and gave a certificate that the petitioners are Bhat Bhuri and both the side placed the notification of Bihar Panchayat Election Rules, 2006 whereas regarding the caste as well as the petitioners placed the notification of the list of Scheduled Castes and Scheduled Tribes under the SCST Act. However, the Sessions Judge rejected the petition on the ground that at the time of taking cognizance and issue of process under Section 204 of the Cr.P.C, the Magistrate is only required to consider the material and evidence before him at that stage and cannot look into the defence and held that the defence taken before the revisional court claiming the petitioners to be a member of Scheduled Caste is not within the jurisdiction and ambit for consideration at the revisional stage and rejected the revision petition. Learned counsel for the opposite party has opposed the defence on the basis of caste certificate issued 3 showing him as a Bhat Bhuri by the Circle Officer/ Block Development Officer and the learned counsel for the petitioners has relied upon those caste certificate issued by the Anchal Office supported with a notification under the SC/ST (Prevention of Atrocities) Act, 1989 which shows that the Bhuri is under the list of Scheduled Caste. Learned counsel for the opposite party, however, has made two fold submissions that second revision is not maintainable and further that the caste certificate mention Bhat Bhuri whereas the notification under the SC/ST Act shows that Bhuri is a Scheduled Caste and Scheduled Tribes. However, having regard to the facts and circumstances, the petitioners rely on a document of a caste certificate produced by the petitioners. However, at the stage of taking cognizance and issuing process the Magistrate is required only to see the prosecution case and evidence and statement produced during enquiry and not the defence of the accused. However, at the time of taking cognizance and issuing process the defence of the accused i.e. caste certificate is not required to be looked into and the defence of the accused may be considered at the stage 4 of the trial. However, having regard to the facts and circumstances the dispute has been raised of Bhat Bhuri as scheduled caste is within the ambit of Scheduled Caste and Scheduled Tribes and hence this can only be considered at the stage of the trial and not at this stage as the caste certificate has been placed at the time of revision. Hence, having regard to the fact and circumstance, I do not find any illegality and irregularity in the revision order as that stage issue process after taking cognizance and the revisional court is not required to look into the defence of the accused while taking cognizance and hence the petitioner may raise the issue at the stage of framing of the charge or at the stage of trial. Hence, I do not feel inclined to interfere with the impugned order at this stage. However, the lower court shall not be prejudiced by this order and consider the defence raised at the appropriate stage. This application is dismissed. Kundan (Gopal Prasad, J.)