IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.57778 of 2007 1. RAM BINAY YADAV, SON OF GANAURI YADAV. 2. GIRIJESH YADAV. 3. AMRESH YADAV. 4. NITISH YADAV, ALL SONS OF RAM BINAY YADAV. 5. VISHNU YADAV @ BISHUN YADAV SON OF LATE SHIVA LAL YADAV. ALL RESIDENT OF VILLAGE UTTARI BARAR, AJMATGANJ, POLICE STATION – PARAYA, DISTRICT – GAYA. ……………. PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. SHIV KUMARI DEVI, WIFE OF MAHENDRA PRASAD, RESIDENT OF VILLAGE – UTTARI BARAR, AJMATGANJ, POLICE STATION – PARAYA, DISTRICT – GAYA. ………. OPPOSITE PARTIES. ----------- 04 02.04.2010 Heard counsel for the parties. This petition has been directed against the order dated 28.03.2006 arising out of Tr. No. 32 of 2006 in Complaint Case No. 261 of 2006 passed by Shri D. Shrivastava, Judicial Magistrate Ist Class, Gaya by which he has ordered to issue summon after taking cognizance for offence under Section 365 / 323 of the Indian Penal Code. Learned counsel for the petitioners contends that the case was filed under Section 364 and 367 but the cognizance has been taken under Section 365 and 323. He further contends that the petitioners have falsely been implicated as the petitioners were the tenant and the informant was the land lord and there was a dispute with regard to the tenancy and rent. The petitioners have falsely been implicated and the son of the petitioner, who has been alleged to have kidnapped, is pursuing his study at Delhi and concealing himself. 2 The prosecution has lodged false case out of mala fide intention. However, this may be the defence of the petitioner but this may not be considered at this stage of issuing process after taking cognizance. As this stage the Magistrate only forms the prima facie opinion on the material available in the statement of complainant and statement of the witnesses and hence there is no merit in this petition and accordingly the same is dismissed. However, the petitioner may raise the defence at proper stage and if so permitted at the stage of framing of charge. Kundan (Gopal Prasad, J.)