IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14791 of 2007 1. BALESHWAR YADAV S/O LATE KRISTI YADAV 2. GANGA BISHUN YADAV S/O HARINANDAN YADAV BOTH R/O VILLAGE- BHAUR BIGHA, PS- NOOR SARAI, DISTT- NALANDA--- --------------------------PETITIONERS Versus 1. THE STATE OF BIHAR 2. ARUN SINGH S/O LATE RAJ KUMAR SINGH, R/O VILLAGE- BHOUR BIGHA, PS- NOOR SARAI, DISTT- NALAND—OPP.PARTIES. ----------- 5 29.4.2009 Heard learned Senior counsel for the petitioners and learned counsel representing the opposite party no.2. Petitioners want quashing of the order taking cognizance dated 12.6.2006 passed by learned Chief Judicial Magistrate, Nalanda in Noor Sarai P.S. Case No. 146 of 2004 under sections 147, 148, 323, 379, 341, 307, 406, 420, 504/34 of the I.P.C. including section 27 of the Arms Act. The origin of the present case is a complaint case which was initially instituted on 2.4.2004 by opposite party no. 2 which was referred to the police for investigation. The matter was investigated and final form was filed but differing with the police report cognizance has been taken against these petitioners stating the reason that there is some materials in the case diary which are reflecting in paragraph 4,7,11, 27 and 28. Learned Senior counsel for the petitioners submits that it is out and out a false case. It has been filed against two petitioners who were vendees of one Anguri Devi and it is evident that the present complaint was filed by opposite party no.2 when he failed to buy the property of Anguri Devi though some kind of understanding and agreement had been reached earlier. It is also stated that a case has - 2 - been filed by Anguri Devi against the present complainant in which cognizance has been taken and in that case these two petitioners were also the witnesses. The Court has also been taken through the complaint petition and the allegation made therein and from the narration in the complaint it is submitted that there are no ingredients to establish that a case under sections 307, 406 and 420 of the Indian Penal Code is made out against these two petitioners Learned counsel representing the opposite party no.2 submits that, no doubt, the origin is a civil dispute and thereafter even in a suit for specific performance of contract a decree has been passed. But if there is criminal element involved behind the background, the Magistrate has committed no wrong in taking cognizance differing with the police report. From the entirety of the allegation and the material which has been brought on record and the reason for filing of the present case there is sufficiency of material to show that this case has been filed with the motive and object to harass the petitioners and the same is a malicious prosecution. As already noticed above there is strength in the submission made on behalf of the petitioners that most of the ingredients of the major sections alleged against these petitioners are not made out and a serious doubt is cast upon the complaint itself. On the totality of the situation this Court is inclined to interfere with the order taking cognizance. The application is allowed. - 3 - The order taking cognizance dated 12.6.2006 in so as it relates to the two petitioners stands quashed. RPS (Ajay Kumar Tripathi,J.)