IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.760 OF 2009 SHANKAR PRASAD, SON OF LATE RADHA PRASAD, RESIDENT OF BHAIRWA, POLICE STATION BISFI, DISTRICT MADHUBANI VERSUS THE STATE OF BIHAR ********* 2 18/08/2009 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. The petitioner who is the father of the victim lady Tara Devi, has filed this application being aggrieved by the order dated 28.11.2008 passed by the Sub Divisional Judicial Magistrate, Patna. Learned Counsel for the petitioner submits that the Court below is not taking cognizance in this case, although all the witnesses have been examined under Section 202 of the Code of Criminal Procedure, rather the Court below has ordered that Tara Devi should be examined before taking cognizance. In the opinion of this Court, it is up to the Court below to take cognizance on considering the allegations in the complaint petition and the evidence led on behalf of the complainant. As far as the production of Tara Devi is concerned, the Court below can only pass an order for 2 production of the lady after taking cognizance of the offence. In this case, no order of cognizance has been passed and if the Court below is satisfied on the materials before it that the offences is made out in the complaint petition, the Court below should pass an appropriate order in accordance with law. However, the Court below cannot summon a person to be examined without there being any case registered against such person. Accordingly, the order dated 28.11.2008 passed by the Sub Divisional Judicial Magistrate, Patna in Complaint Case No. 360(C) of 2008 is set aside. In the result, this application is allowed with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )