IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.13149 of 2009 NARESH SINGH, Son of Late Ram Bahadur Singh, Resident of village – Echarua, P.S. – Allauli, District – Khagaria. ............. Petitioner. Versus THE STATE OF BIHAR ............. Opp. Party. ----------- For the Petitioner :- Mr. N. K. Agrawal, Sr. Advocate. Mr. Binod Kumar, Advocate. For the State :- Mrs. Pronoti Singh, A.P.P. 05/ 13.01.2011 Heard. This petition is directed against the order dated 13.01.2009 passed in Complaint Case No. 2C2 of 2009 passed by the Chief Judicial Magistrate, Khagaria by which he has taken cognizance for offence under Section 193 and 195 of the Indian Penal Code on a complaint filed by the Officer-In-Charge, Allauli in the complaint. From perusal of the records it appears that an FIR was lodged on the fardbeyan of one Bechani Devi about attempt to rape by one Ram Naresh Singh and the police on investigation found the case false and recommended for action against the complainant under Section 182 and 211 of the I.P.C and further observed that one Ram Naaresh Singh was instrumental in lodging the false case by setting up Bechani Devi to serve his own interest and hence direction was given for prosecution of 2 one Ram Naresh Singh under Section 193 and 195 of the Indian Penal Code and on that basis a complaint was filed by the Officer-In-Charge, Allauli and the complaint mentions the fact as above mentioned and it mentions that during investigation and supervision found that the case has been filed by setting up Bechani Devi to serve the interest by falsely implicating Ram Naresh Singh and Ram Naresh Singh is instrumental. On the basis of complaint filed by the Officer-In-Charge the cognizance was taken treating the complaint as official complaint. The learned counsel for the petitioner, however, contended that there is no material in the entire case diary or in the complaint petition to suggest the implication of Naresh Singh being instrumental in setting up Bechani Devi for creating any evidence. It has further been contended that any statement made before police does not cover under Section 193 and 195 of the Indian Penal Code and there is no allegation that any false evidence was given in Court or fabricated by false entry or false statement during evidence in a judicial proceeding or in a proceeding taken by law before a public servant and since there is no allegation whatsoever of giving any false evidence or fabricating false 3 evidence and hence Section 193 and 195 of the Indian Penal Code is not at all applicable and moreover there is no allegation and the entire complaint is based on conjectures and surmises without any material. The learned counsel for the State, however, pointed out at paragraph 35 of the case diary the statement of Bechani Devi under Section 164 of the Cr.P.C. However, taking into consideration the allegation in complaint or even in case diary of case by Bechani Devi there is no material to infer prima facie material of Section 193 and 195 of the Cr.P.C. Even in the statement under Section 164 of the Cr.P.C. Bechani Devi has stated that one Gopal and Naresh Singh came to her house and took signature on plain paper for instituting any case and she refused to have lodged the case. However, there is no allegation whatsoever and a fact in the entire case diary or in the complaint that Naresh Singh ever represented or instrumental in adducing evidence or lodging the case and hence taking into consideration the allegations made in the complaint or even in the case diary there is no foundational fact to make out an offence against the petitioner under Section 193 and 195 of the Indian Penal 4 Code and hence the order taking cognizance apparently appears to be without any basis and mere on the opinion of the Police Officer and hence the order taking cognizance is hereby set aside and hence the petition is allowed. Kundan (Gopal Prasad, J.)