IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40985 of 2009 REENA DEVI & ORS Versus STATE OF BIHAR & ANR ----------- 3. 19.7.2010. Heard. The order directing framing of charges against the petitioners under Sections 376/109 of the IPC appears not sustainable in law only because of the fact that the impugned order does not indicate that there was any element of conspiracy between the owner of the house or other accused persons and the main culprit Laloo Yadav, whose enquiry has been sent to the Juvenile Justice Board. The court ought to have considered that in any case of abatement the element of conspiracy is inherently present and unless there is prima-facie material in that behalf no charge under Section 109 of the IPC could be framed unless the abetor is shown to have the intention or knowledge that the act abated should be committed or that he should conspire with the man abated to commit the offence. The material which has been discussed by the learned trial Judge and which also appears detailed in the complaint petition does not indicate that a charge against the - 2 - petitioners could have been framed under Sections 376/109 of the Penal Code. It could be sheer abuse of the process of the court and completely illegal judicial act to be done and as such, the petition is allowed. The order directing the framing of the charges under Sections 376/109 of the Penal Code is hereby set aside. As regards the other part of the order in respect of other offences that shall stand as it was as was passed by the learned trial Judge. B.Kr. ( Dharnidhar Jha, J. )