IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.1842 of 2009 1. KISHORI RAI, S/O LATE GULABI RAI 2. BINDA RAI, S/O KISHKORI RAI BOTH RESIDENTS OF MOHALLA YADAV NAGAR BHAGWANPUR, P.S. MUZAFFARPUR SADAR, DISTRICT, MUZAFFARPUR .. PETITIONERS Versus. 1. THE STATE OF BIHAR 2. RAMESH CHANDRA RAI, S/O GONAUR RAI, R/O MOHALLA YADAV NAGAR BHAGWANPUR, P.S. MUZAFFARPUR SADAR, DISTRICT, MUZAFFARPUR .. OPPOSITE PARTIES **** /4/ 10.01.2011 Heard the counsel for the parties. 2. This application is for quashing the order, dated 10.11.2008, passed by the Chief Judicial Magistrate, Muzaffarpur, in Sadar P.S. Case No. 247 of 2005 by which the cognizance has been taken for offence under Section 436/34 of the Penal Code. 3. The prosecution case, as alleged that the Bhabhi of the informant made hulla on which the informant and his father came out and saw that Kishori Rai and Binda Rai are fleeing away from the place of occurrence. 4. The learned counsel for the petitioners, however, submits that there is enmity between the parties and this is a case of false implication. In the case diary it has come that Binda Rai had set afire. From the defence version it transpires that one Deodhari Rai, who was smoking biri, may have burnt the biri 2 and would have been thrown it due to which, as the investigating officer found in the supervision note, the fire would have taken place. 5. However, having regard to the fact that there is allegation that the accused persons were seen fleeing away at the time of occurrence and it has been presumed that they would have lit the fire, however, the defence of the accused is not required to be considered at this stage. 6. Hence, having regard to the fact that on the allegation made in the complaint make out an offence and even if there is strong suspicion a cognizance can be taken and charge framed. At the time of issuance of process it is the opinion of the Magistrate which shall prevail. Hence, having regard to the allegation that at the time of occurrence the petitioners seen fleeing away and there is material to suggest that a prima facie case is made out. 7. Hence, I do not find any merit in this application. This application is dismissed. 8. However, the petitioners may raise the issue at the time of framing of the charge. S.A. ( Gopal Prasad, J.)