IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50634 of 2007 1. LALAN RAI 2. Prem Narain Rai Both sons of Late Jagdish Rai 3. Kaushalya Devi, W/o Prem Narain Rai 4. Girish Mani Devi , W/o Lalan Rai, 5. Parul alias Lalgudi Son of Prem Narain Rai 6. Shailesh Kumar Rai, Son of Lalan Rai, 7. Nirmala Devi, Wife of Shailesh Rai 8. Rishu Son of Lalan Rai 9. Miku, Son of Lalan Rai 10. Pinku Srikant Rai, Son of Prem Narain Rai, 11. Sanjay Sanjay Rai, Son of Prem Narayan Rai All residents of village Jalilpur, P.S. Rajpur, District Buxar …. Petitioners Versus STATE OF BIHAR ……………. Opp. Party ----------- For the petitioner : M/s Binod Kumar Singh & Sanjay Kumar Pandey For the State : Dr. Mayanand Jha, A.P.P. -------- O R D E R Petitioners who have been arrayed as accused in Complaint Case No. 709(C) of 2007 have prayed for the quashing of the entire criminal proceeding arising therefrom including the order dated 16.7.2007 passed by Sri R.K.Shukla, Judicial Magistrate, 1st Class, Buxar, whereby he has taken cognizance of alleged offences punishable under sections 341, 325 and 379 /34 IPC . One Jamwanti Rai, spinster, who has not even been impleaded as a party in this application filed the complaint on 18.6.2007 against 11 petitioners alleging commission of offences under sections 341 and 307 IPC at their hands, inter alia, on the allegations that she is the unmarried daughter of Late Jagdish Rai who left behind valuable property worth crores of rupees in village - 2 - Jalilpur and had two brothers Lalan Rai and Prem Narain Rai who were wasting the parental property and when she remonstrated against their acts of omission and commission they tried to kill her by putting a rope round her neck and attempting to strangulate her, and they even assaulted her with fists as a result whereof her front teeth got displaced and her lips were hurt. It is further stated that some how she managed to flee and going to the Mukhia narrated the entire story to him but no help was forthcoming since her brothers were very influential persons. She then informed the police through the village Chaukidar but even the police did not come to her help. She alleged that her brothers along with their wives and children were not allowing her to enter into her house and she received no help from the co-villagers. Assailing the impugned order the learned counsel for the petitioners submitted that Lalan Rai and Prem Narain Rai the alleged brothers, to the best of their knowledge, have no elder sister living and from this it would be apparent that some one with avaricious and covetous eyes on the valuable property of their late father had set up this complainant to lodge a false case. The falsity of the case, it is submitted by the learned counsel for the petitioners, would be apparent from the fact that at the age of 56 she was still unmarried and no injury report or evidence with regard to attempt on her life or injury had been produced by her. Grievance has also been raised against the court taking cognizance without looking into the report by the police which had been called for earlier and with regard - 3 - to the happenings of the case. Grievance has also been raised against impugned order taking cognizance only on the basis of the statement of complainant on S.A. without there being any corroborative evidence in support of the allegations from other witnesses . It is apparent from the perusal of the statement of the complainant on S.A. that she had stated in paragraph 6 that her brothers being influential and haughty persons every soul in the village was afraid of them and none of them were willing to depose against them in Court and as such she could produce no corroborative evidence. To court questions she stated that her father had expired on 3.3.1971 and that she had not filed any case for partition of the properties. She also stated to the court that she had not got herself treated although she did admit that she had informed the police through the village Chaukidar and that the Chaukidar had given oral information to the police. Apparently the bold statement of the complainant assigning reasons for not being able to produce any witness on her behalf to corroborate her statement on S.A. appears to have weighed with the Court in taking cognizance. Section 190 Cr.P.C. is not exhaustive of the materials of which cognizance can be taken. The expression ‘taking cognizance’ has not been defined but as held by the Apex Court and by this Court when the Magistrate on receiving a complaint applies his mind for proceeding under sections 200 to 203 Cr.P.C. he is said to have taken cognizance of the offence within the meaning of Section 190(1) (a) - 4 - Cr.P.C. Then again cognizance is taken of an offence and not as against an offender and taking cognizance does not necessarily mean the commencement of the proceedings against any one. One has to remember that there is a marked difference between the cognizance of an offence and prosecution of an offender. What section 190 Cr.P.C. empowers is the taking of cognizance and not to deal with offenders. It is well settled that for taking cognizance only a prima facie case has to be established. Meticulous examination of probabilities and improbabilities is not required. In view of the discussions made above I find no apparent illegality or impropriety in the impugned order so as to interfere with the same. Plausible explanation has been furnished by the complainant for not being able to adduce any corroborative evidence in support of her case and that plausible explanation has been accepted by the Court which on perusal of the same came to a conclusion that a prima facie case for proceeding against the accused had been made out. The finding of the Magistrate cannot be interfered with at this stage. In the result I find no merit in this application which is dismissed. Patna High Court, Patna. Dated : The 26th of February, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)