IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5534 of 2006 MOHAN CHOUDHARY @ MUKHIYA & ORS . Versus STATE OF BIHAR & ANR . ----------- 7 18.03.2010 Heard counsel for the petitioners and the State. The petitioners pray for setting aside the order dated 9.11.2005 passed by the Judicial Magistrate Ist Class, Biraul at Benipur in Samastipur SC/ST P.S. Case No.50 of 2001 dated 6.12.2001 arising out of G.R.No.528 of 2001 whereby cognizance of offence under sections 323, 342, 385 and 504 of the Penal Code has been taken against the accused persons. Earlier the case was instituted under section 3(x) of the SC/ST Act and the police after investigation found the case to be false. The informant filed a protest petition and the learned Magistrate took cognizance thereupon under the provisions mentioned above, against all the four accused persons. Learned counsel for the petitioners submits that seven witnesses were named in the protest petition out of which none supported the prosecution case and the two witnesses who were not named even in the protest petition namely Narayan Mallik and Ugeshwar Chaupal partly supported the prosecution case. He further submits that Ugeshwar Chaupal even did not name petitioner no.3 Mundrika Devi in his deposition. A series of litigation is going on between the parties, the details of which has been mentioned in 2 paragraph 8 of this petition. This court by order dated 19.7.2006 issued notice to Opposite party no.2 but no one appeared on his behalf. It would appear from perusal of the materials on record that the police did not find the case to be true against the accused persons. None of the nine witnesses mentioned in the protest petition supported the prosecution case. However, two witnesses, who were not named in the protest petition, partly supported the prosecution case. One of the witnesses namely Ugeshwar Chaupal even did not name petitioner no.3 Mundrika Devi as an accused. Further more Ugeshwar Chaupal even did not allege that the informant was put in fear of injury in order to commit extortion. Having considered the facts and circumstances of the case, this court finds that series of litigations are pending between the parties from before and there is no sufficient material to proceed against petitioner no.2 and as such the order taking cognizance dated 9.11.2005 and the criminal prosecution against the petitioner no.2 is bad in the eyes of law. It is accordingly quashed. This court further holds that there is also no sufficient material to proceed against rest of the accused persons under section 385 of the Penal Code and as such, the order taking cognizance there under even against rest of the accused is bad in the eyes of law and it is accordingly set aside. However, the order taking cognizance under sections 323 and 504 of the Penal Code against them is not interfered with. 3 KHAN The order dated 9.11.2005 passed by the Judicial Magistrate Ist Class, Biraul at Benipur is modified to the extent indicated above. In the result, this application is allowed partly. (S.P.Singh,J)