IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.11540 of 2009 1. SALAUDDIN @ SALAUDDIN ANSARI, S/O MD. YUSUF ANSARI 2. SAFIRUDDIN @ SAFIRUDDIN ANSARI, S/O MD. YUSIF ANSARI BOTH RESIDENTS OF MOHALLA ISMAILGANJ, P.S. LAHERIASARAI, DISTRICT DARBHANGA 3. NEZAMUDDIN, S/O KALLU ANSARI, RESIDENT OF MOHALLA ISMAILGANJ, P.S. LAHERIASARAI, DISTRICT DARBHANGA .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. MUZAFFAR KHAN, S/O LATE LATIF KHAN (PRINCIPAL-CUM- MANAGER, KHAN MOTOR TRAINING CENTRE), RESIDENT OF MOHALLA ISMAILGANJ, P.S. LAHERIASARAI, DISTRICT DARBHANGA .. OPPOSITE PARTIES **** For the petitioners .. M/S R.B.N. Singh & Babita Kumari, Advs. For the State .. Mr. Abhimanyu Sharma A.P.P. For opposite party no. 2 .. M/S R.A. Singh & Arjun Prasad no.1 Advs. **** /5/ 13.01.2011 Heard the counsel for the parties. 2. This petition is for quashing the order, dated 20.02.2009, passed by the Chief Judicial Magistrate, Darbhanga, in Laheriasarai P.S. Case No. 32 of 2006, by which the cognizance has been taken for offence under Sections 147, 148, 323, 452, 380 and 427 of the Penal Code. 2 3. The prosecution case, as alleged in the fardbeyan that while the informant, opposite party no. 2, was running his Motor Training Centre, then Salauddin @ Salauddin Ansari and Safiruddin @ Safiruddin Ansari came, armed with fire arms and started assaulting the informant and pointed pistol on his ear and took away Rs.8,000/- cash from the drawer and Nezamuddin took the C.D. player and they commanded their associates, who were about 20-25 in numbers, to loot his house and even take out the doors and windows. It is alleged that all the accused persons looted away property worth Rs.30,000/-. On the fardbeyan the first information report was lodged and after investigation the police submitted the charge sheet against petitioners 1 and 3 and submitted final form against petitioner no. 2. However, the charge sheet against petitioner no. 1, Salauddin @ Salauddin Ansari, under Sections 143, 144, 323 and 504 of the Penal Code and petitioner no. 2, Safiruddin @ Safiruddin Ansari, was not sent up and his name shown in column no. 12 of the charge sheet. However, the learned Magistrate took cognizance under Sections 147, 148, 323, 452, 380 and 427 of the Penal Code against all the petitioners, including 3 Safiruddin @ Safiruddin Ansari. However, the learned Magistrate perused the complaint and the police report and due consideration in the statement of witnesses in paragraphs 4 and 5 of the case diary and has referred in the same impugned order. 4. The learned counsel for the petitioners, however, submits that the petitioners have been falsely implicated in this case, the land has been purchased by petitioner no. 2 and the accused persons, during investigation, did not produce any paper that how they were in possession of the alleged Motor Training Centre and submits that they have been falsely implicated as the dispute with regard to the land which belongs to the petitioners and, further, all the three petitioners have taken the plea of alibi that they were not present, at the time and on date, at the place of occurrence. 5. The plea of false implication and alibi and the claim of possession over the land is a disputed question of fact and disputed question of fact can not be decided at this stage by this Court for quashing the order taking cognizance. However, having regard to the fact that the allegation made in the complaint, itself, make out an 4 offence and on investigation police found evidence against the petitioners 1 and 3 and the plea of alibi is a weak defence to be looked into at the stage of trial and can not be a ground for quashing a case at this stage on the plea of alibi as at the stage of quashing a defence of the accused can not be taken into consideration. However, so far the malafide is concerned, if the allegation makes out an offence and there is evidence to support the allegation then the malafide become secondary and the defence of the accused can only be considered at the stage of trial as it is a question of fact. 6. Hence, having regard to the facts and circumstances, I do not find any merit to interfere with the impugned order. 7. This criminal miscellaneous application is dismissed. S.A. ( Gopal Prasad, J.)