IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.2234 of 2009 1. BHOGENDRA MANDAL, Son of Late Deo Narayan Mandal. 2. Rekha Devi, Wife of Bhogendra Mandal. Both resident of village – Phant, P.S. – Basopatti, District – Madhubani. .................. Petitioners. Versus 1. THE STATE OF BIHAR. 2. Asha Devi, Wife of Pawan Yadav, resident of Village – Manmohan, Police Station – Basopatti, District – Madhubani. ................. Opp. Parties. ----------- For the Petitioners :- Mr. Anand Kumar Ojha, Advocate. Mr. Ravindra Kumar Singh, Advocate. For the State :- Mr. Damodar Prasad Tiwary, A.P.P. 06/ 02.02.2011 This is a petition for quashing the order dated 24.01.2008 passed in Complaint Case No. 1170 of 2007 by which it has been ordered to issue summon against the accused persons after taking cognizance for offence under Sections 323, 341 and 354 of the Indian Penal Code. 2. The prosecution case as alleged in the complaint petition is that accused Rekha Devi, Mukhiya took Rs.5000/- from the complainant on the pretext of making available Indira Awas but the complainant did not get, then the complainant on 18.08.2007 demanded her money to be returned back and then it is alleged that Rekha Devi abused the complainant by calling her Dushadhin and assaulted her by fists and slaps and even ordered her henchmen to assault then the complainant 2 anyhow manage to escape and when reached at Manmohan Chowk then the accused Bhogendra Mandal and others abused with ulterior motive and it is alleged that Bhogendra Mandal and unknown persons took her in a orchard and tried to rape her and she anyhow managed to flee away. On the complaint petition a report was called for from the S.D.P.O as well as the solemn affirmation of the complainant and the witnesses was recorded. The processes were issued against the accused persons after taking cognizance for offence under Sections 323, 341 and 354 of the Indian Penal Code. 3. Learned counsel for the petitioners submitted that the entire allegation against the petitioners is false and frivolous. It is stated that the S.D.P.O after detail investigation submitted its memo before the Chief Judicial Magistrate and the supervision report also meticulously shows otherwise and there is difference in place of occurrence in the said report and it is alleged that the said case has been lodged at the instance of one Nathuni Yadav, who is the father of Birendra Yadav and accused in a Basopatti P.S. Case No. 67 of 2006 for offence under Section 302 of the Indian Penal Code for 3 which the First Information Report has been lodged by Bhogendra Mandal, this petitioner and said Nathuni Yadav tried all means to gain over the petitioner no. 1 for compromise but in vain and so the false case has been lodged at his instance and the case has been instituted at the behest of said Nathuni Yadav. 4. However, having regard to the fact and circumstance, as per allegation on the face value of the complaint made out an offence. However, the defence has been taken of false implication on ground that Nathuni Yadav is instrumental in getting the case instituted by setting up the complainant. However, no nexus has been established between Nathuni Yadav and the complainant and at this stage this Court cannot appreciate or meticulously examine these facts as defence of accused which is neither admitted nor established and also cannot appreciate the materials or even taken into consideration the defence set up by the accused and hence, having regard to the fact that since the allegation against the petitioner makes out an offence and the learned Magistrate after due application of his mind opined that offence is made out and at this stage the opinion of the Magistrate prevails. 4 This Court cannot take into consideration the defence of the accused at this stage and hence, there is no merit in this petition. 5. Accordingly, this application is dismissed. Kundan (Gopal Prasad, J.)