IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.49969 of 2007 NAND KUMARI DEVI, wife of Birendra Mani Tiwari, Resident of village Purendrapur, P.S. Malahi, District East Champaran. Versus 1.THE STATE OF BIHAR 2.Jai Prakash Tiwari, Son of Surendra Tiwari 3.Subhash Tiwari, Son of Surendra Tiwari 4.Ravi Prakash Tiwari, Son of Surendra Tiwari 5.Om Prakash Tiwari, son of Surendra Tiwari 6.Prabhash Tiwari, Son of Surendra Tiwari 7.Dinkar Tiwari, Son of Ramadhar Tiwari All resident of village Purandrapur, P.S. malahi District East Champaran. ----------- 5 29/3/2010 Heard learned counsel for the petitioner and learned counsel for the State. Despite service of notice on opposite party nos. 2 to 7 no one has appeared to oppose prayer of the petitioner even though Vakalatnama has been filed on their behalf by one Mr. Rakesh Ranjan Mishra, Advocate of this Court. Grievance of the petitioner as against the impugned order taking cognizance on her protest petition for the offence under section 346/34 of the I.P.C. is quite simple and clear that there were sufficient materials to show that it was offence under section 364A of the I.P.C. inasmuch as, there was specific averments in the protest petition followed by the statement of two persons who were examined on behalf of the complainant in course of enquiry under section 202 of the Cr.P.C. Counsel in fact has also assailed the impugned order passed by the revisional Court confirming the order taking cognizance for offence under section 346/34 of the I.P.C. 2 This Court, on perusal of the materials on record would find that even when cognizance was taken under sections 346/34 of the I.P.C. there was always an opportunity for the complainant to raise this issue at the time of framing of charge. This Court, however, would not however approve the reasons given by the revisional court that such order taking cognizance under section 346/34 of the I.P.C. was justified only because all the witnesses named in the complaint petition were not examined by the complainant-petitioner. Accordingly, this Court would direct the trial court to reconsider this question at the inception of the trial and if it is found that there are materials for constituting the offence under section 364 A of the I.P.C., the court below in exercise of its power under section 322 and 323 Cr.P.C. will hand over the trial to the competent court. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)