IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12470 of 2009 Subash Chandra Pandey, son of Late Balram Pandey, Resident of Balram Bhawan, Buranath Road, Joghar, P.S. Adampur (Kotwali)…………………..Petitioner. Versus The State of Bihar ……………………Opposite Party. For the petitioner :- Mr. Rajive Ranjan Singh, Advocate. For the State :- Mr. Damodar Pd. Tiwary, A.P.P. ----------- 3. 13. 01. 2011. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 12. 09. 2007, passed by Shri O.P. Pandey, Judicial Magistrate Ist, Class, Bhagalpur, in Kotwali P.S. Case No. 272/07, G.R. No. 1261/07 for which cognizance has been taken for offences under Sections 468, 471, 181 and 420 of the Indian Penal Code. 2. The prosecution case as alleged that in the Fard Beyan , petitioner in his Affidavit bearing no. 8, dated 05. 09. 03 and Affidavit No. 9, dated 05. 09. 2003 furnish that no criminal case is pending against him neither in his knowledge of any criminal case. Along with this affidavit a petition has been filed for taking licence of the arms, whereas it was found charge sheet has been submitted against the petitioner in connection with Kotwali P.S. Case No. 625/96 for offences under Sections 419, 420, 467, 468 and 120 B of the Indian 2 Penal Code and Charge Sheet has also been submitted bearing Charge Sheet No. 584, dated 05. 12. 2000. 3. In this regard a direction was issued by the District Magistrate, Bhagalpur, to lodge a case and on the basis of the said letter of the Executive Magistrate to the Officer-in-Charge, F.I.R. lodged. After investigation, police submitted charge sheet on the basis of which cognizance has been taken. 4. However, learned counsel for the petitioner submits that occurrence is of three years and nine months back. It has further been contends that during investigation, notary and identifier of the said affidavit has not been examined during investigation. 5. It has further been contended that he has not written said letter. It has further been contended that prior to the occurrence he has filed a case for offence under Section 307 I.P.C. against some of the Police Officers and even press for issuance summons and hence, contends that since he has filed the case against the Police Officer and was pursuing the same, the petitioner has falsely been implicated. 6. Having regard to the point raised including the limitation is disputed question of fact like the defence of the accused can only be tested at trial and not to be taken into consideration at the outset for 3 quashing the prosecution and order taking cognizance. The defect in investigation also cannot be a ground of quashing and the prosecution cannot dictate the course of investigation and it is only prima facie case is the requirement to take cognizance on police report. 7. However, having regard to the allegation, that the petitioner has falsely been implicated as he has filed a case against the Police Officer, but name of the Police Officer concerned has not been established that who that Police Officer was. 8. However, point raised by the petitioner as well as affidavit filed could not make out a point to quash the order taking cognizance at this stage. 9. Hence, I do not find any merit in this petition and the petition is hereby dismissed. However, if so advised, the petitioner may raise his issue at the stage of framing of charge. m.p. ( Gopal Prasad J.)