IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43137 of 2007 1. KAMALI DEVI , wife of Sri Lalu Mahto 2. Rajo Mahto, son of late Rampati Mahto 3. Sarita Devi, wife of Sri Masudan Mahto 4. Devendra Mahto, son of Sri Majo Mahto 5. Mares Devi, wife of Sri Devendra Mahto 6. Jhiliya Devi, wife of Sri Rajo Mahto 7. Masudan Mahto 8. Lalu Mahto Both sons of Sri Rajo Mahto All resident of village Amarath, P. S. + District- Jamui. 9. Saraswati Devi, wife of Sri Sarwan Mahto, resident of village, Rampur, P. S. Sikandra, District- Jamui… ….Petitioners. Versus 1. STATE OF BIHAR 2. Ram Kishore Mahto, son of late Rameshwar Mahto, resident of village Bilauri, P. S. Lakhisarai, District- Lakhisarai.. … Opposite parties. ----------- 3. 19.03.2010 Heard counsel for the petitioner and counsel for the opposite party no. 2. The only ground on which the order taking cognizance under Section 304(B), 201/34 of the I.P.C. is sought to be assailed is absence of any material in the case-diary so as to connect these petitioners in the alleged offence. This Court, however, would find that the court below while passing the impugned order has referred to paragraph 2, 3, 4, 5, 16, 52 and 54 of the case diary and on that basis it has recorded that there were sufficient materials to proceed against the petitioners. 2 Counsel for the petitioners would submit that such statement in the case diary would not inspire confidence inasmuch as there was no eyewitness to the alleged accordance such intricate questions however can not be gone into by this Court at this stage. As a matter of fact, at the stage of order taking cognizance, such defence of the petitioner is not to be taken into account as has been taken in paragraph 7 of the petitioner in the following words :- “ ….7. That the petitioner no. 9 is married sister-in-law (Nanad) of the deceased who lives in her sasural i.e. village- Rampur, P. S. Sikandra, District- Jamui with her husband and is on anticipatory bail. The petitioner no. 1, 3 and 5 are sister-in-law (Gotani) of the deceased and they have been living separately since long with their husband. Petitioner No. 1 with her husband (Petitioner No. 8) and petitioner no. 3 with her husband (petitioner no. 7) have been living in Panjab and at Puna in Maharastra respectively prior to 3 to 4 years of marriage of the deceased where their husband have been working in private company and they had/have no concern with the husband of the deceased and the petitioner no. 5 and 4 are also Gotani and Bhaisur of the deceased respectively and petitioner no. 2 and 6 are father-in-law and mother-in-law respectively from whom, the husband of the deceased had been living separately with his wife ( now deceased ) and these facts have been supported by the witnesses during investigation and supervision before the I.O. and Supervising authorities and as the alleged offence was found to be false and final form was submitted against them as 3 mistake of facts (contained in Annexure-2), but without considering the same the learned A.C.J.M. was pleased to take cognizance against them which abuses the process of the court and as such the order taking cognizance and entire proceeding against the petitioners is fit to be quashed in the ends of justice…” It would thus become clear that the defence of the petitioners is only taken on the ground of relationship or impossibility of such relations being involved for an offence under Section 304 B of the Indian Penal Code. Unfortunately, that cannot be looked into at the stage of taking cognizance. The reliance placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of Harishchandra Prasad Mani & Ors. Vs. State of Jharkhand & Anr. reported in 2007(2) PLJR 226 (SC) for questioning the maintainability of the prosecution of the petitioners in apparently misplaced. From the reading of aforesaid judgment it would be clear that the Apex Court having found that there was no evidence or material on the record against the accused persons of that case, had only gone to hold that order taking cognizance was not sustainable. That is however is not the case here inasmuch as there is no whisper in the application that the order is 4 based on the error of record. In that view of the matter, the Judgment of Harishchandra (supra) is not applicable in the facts of the present case. Counsel for the petitioner has also referred the judgment of Apex Court in the case of Appasaheb & Anr. vs. State of Maharashtra reported in 2007(2) BBCJ 90, wherein a proposition of law has been laid down to the offence under Section 304 B. The said judgment was out of a judgment of conviction wherein husband and mother- in-law were convicted by the trial court and such conviction was also affirmed by the High Court. This Court would fail to consider as to how the ratio of Appasahed (supra) will be applicable to the facts of the present case where the trial is yet to commence and the stage is only of taking cognizance. That being so, this court does not find any merit in this application and the same is accordingly dismissed with a liberty to the petitioners to raise all the issues at the time of framing of the charge. kanchan (Mihir Kumar Jha, J.)