IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18575 of 1999 1. MD. EQUBAL SON OF SEKH ABU 2. MD. MAZHAR SON OF SEKH BHUKHRU 3. MD. SHARIF ALIAS MD. SHAFIQUE SON OF SEKH SAFDAR 4. MD. IFTACKHAR SON OF SEIKH KAILA 5. MD. USMAN GANI SON OF ULFAT 6, MD ISHARAFIL SON OF S.K.JAMAL 7. MD. HABIB ALAM SON OF DOMAN 8. MD. NESAR SON OF S.K. JOHAR. 9. MD. INTEZAR SON OF SEIKH JOHAR 10.MD. JEHANGIR SON OF SK. AMIRUDDIN 11. MD.MULAHAI 12. S.K. IRFAN SON OF CHULAHI, ALL ARE RESIDENT OF VILLAGE HASAI, P.S. DHORYA, BANKA….. PETITIONERS ---------- 1. STATE OF BIHAR 2. MD. ISFAR SON OF LATE BAD BAKIS RESIDENT OF HASAI, P.S. CHORIYA, DISTRICT- BANKA…… OPP. PARTIES. ----------- 6 28-4-2010 Heard learned counsel for the petitioners and learned counsel for the state. 2. Petitioners are accused in Dhoriya P.S. Case No. 16 of 1999 dated 5-2-1999 under sections 328,379/34 of the Indian Penal Code. They have prayed for quashing of order of cognizance dated 1-4-99 as well as the entire criminal proceeding against the petitioners. 3. On behalf of petitioners it has been submitted that the allegations are false and motivated by an earlier case lodged against the informant which is mentioned in the F.I.R 4. After investigation police submitted charge sheet against the petitioners and the learned Magistrate has taken cognizance after due application of mind to the relevant report and the documents under sections 328,379/34 of the I.P.C. 5. It is not possible to dis-believe the allegations made in the complaint petition at the present stage. No illegality is found in the 2 impugned order of cognizance so as to warrant interference. Section 328 of the I.P.C. may not be attracted in the present case and probably that is why the learned Magistrate has taken cognizance under section 428 of the I.P.C. which deals with the offence of mischief. The submission that there is no allegation of theft of fishes is found unacceptable because in the F.I.R. it is specifically alleged that the accused persons removed fishes from the pond of the informant and thereafter they administered poison which led to descrution of fishes of Rs.50,000/-. 6. In view of aforesaid discussions this Court finds no merit in this application. It is accordingly dismissed. 7. Defect in the charge may be looked into by the learned court below at the appropriate stage. . Naresh ( Shiva Kirti Singh, J.)