IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.9781 of 2008 KAMLA KANT SHARMA, SON OF RAMESH SHARMA, RESIDENT OF VILLAGE – ORBIGHA, P.O. – MAGHIYAMA, P.S. – KARPI (VASHI), DISTRICT – ARWAL. …………………………. PETITIONER. Versus THE STATE OF BIHAR …………………… OPP. PARTY. ----------- For the Petitioner :- Mr. Bishwanath Singh, Sr. Advocate. For the State :- Ms. Veena Kumari Jaiswal, A.P.P 02 03.05.2010 Heard the parties. This is a petition for quashing the order dated 11.12.2007 passed by Chief Judicial Magistrate, Jehanabad whereby and whereunder he has taken cognizance under Sections 147, 148, 149, 379 and 302 of the Indian Penal Code and issued summons against him. Learned counsel for the petitioner, however, makes two fold submissions that though the final form was submitted against the petitioner showing him to be major at the time of occurrence but the learned Magistrate has taken cognizance even when the petitioner was not sent up for trial by the police and further that the informant has named the petitioner in his further statement though after 17 days, the petitioner has not been named in the FIR. However, having regard to the facts that the case is at the stage of taking cognizance and hence at the 2 stage of taking cognizance even if a person has not been sent up for trial and if there is material against him, the Magistrate may take cognizance against him and issue process against him under Section 204 of the Cr.P.C. if there is material in case diary and hence, the impugned order cannot be said to suffer from any infirmities at this stage. When the petitioner has been named by the witness in case diary the name of petitioner find place in case diary after 17 day of the occurrence. However, the delay itself may not be a ground for quashing the prosecution. However, it may be a defence and a good ground to be considered at the stage of trial, hence having regard to the facts and circumstances, I do not find any merit in this petition. This petition is dismissed. However, learned counsel for the petitioner may raise these issues at the stage of framing of the charge. Kundan (Gopal Prasad, J.)