IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25541 of 2007 MANOJ KUMAR RAI @ MANOJ KUMAR, son of Satyanarain Rai, village Dumduma, P.S. Kudhni, District Kaimur. Versus 1.STATE OF BIHAR 2.Ramesh Rai, son of Sankhata Rai 3.Satyendra Rai, son of Awadh Narain Rai, village Dumduma, P.S. Kudhni, District kaimur. ----------- 7 16-02-2010 Heard counsel for the petitioner and counsel for the opposite party nos. 2 and 3. The impugned order passed by the C.J.M. Bhabhua dated 27.9.2006 dismissing the complaint case for offence under Section 364/364A/120B/34 of India Penal Code and its affirmance by the revisional court by order dated 18.5.2007 by the Court of Additional District & Sessions Judge, Bhabhua has been called in question before this Court by the complainant petitioner in this application under section 482 of the Code of Criminal Procedure primarily on the ground that both the courts have failed to take into account that after the police case instituted at the version of the complainant had been found to be false, his statement recorded on solemn affirmation as also those of his witnesses in course of enquiry under section 202 of the Cr.P.C. were sufficient to make out the ingredients of the offence alleged in the protest petition which was treated to be a complaint. Mr. Ramakant Sharma, learned senior counsel has in this regard laid emphasis on the order passed by the court below and has submitted that the court had virtually conducted a full 2 fledged trial at the stage of taking cognizance by weighing the evidentiary value of the statement of all the persons recorded in course of enquiry under section 202 of the Cr.P.C. by also taking into account the material contradiction in their such statement on the basis of court question put to them. He has also in this regard criticized the revisional order to wherein this aspect of the matter was brushed aside only by recording the finding in one line that there was no prima-facie material in the complaint petition against accused Ramesh Rai and Satendra Rai. Mr. Amish Kumar, learned counsel for the opposite party nos. 2 and 3, on the other hand, would submit that even the complainant in the statement on solemn affirmation had materially contradicted himself and his statement would not inspire confidence especially when other witnesses in course of enquiry under section 202 of the Cr.P.C. had also not stood to their version while answering the court question. In the opinion of this Court by now it is well settled that at the stage of taking cognizance or even dismissing the complaint, the court has to only apply the yard stick to find out as to whether there is prima-facie material constituting offence, and for this there would be no need to go into correctness, quality or merit of the evidence as if it was holding a regular trial. The statements of the witnesses recorded in course of enquiry under section 202 of the Cr.P.C. also having been not subjected to cross examination, the court question cannot be substituted for testing 3 the veracity of such statement of the witnesses. That being the basic difference between the stage of enquiry and trial, the learned Magistrate while dismissing the complaint under section 203 of the Cr.p.C. had clearly over stepped his limit as a detailed analysis of statement of all the witnesses examined in course of enquiry under section 202 of the Cr.P.C. was not required. This Court in fact has also gone into the correctness of the finding recorded by the revisional court as with regard to availability of the material and from the averments made in the protest petition as also on solemn affirmation it appears that there was a prima-facie case against the opposite party nos. 2 and 3. In that view of the matter, when other witnesses in course of statement under section 202 of the Cr.P.C had also more or less supported the allegations made in the complaint petition they could not have been altogether discredited only on the basis of certain court question put to them. That being so, both the impugned orders are unsustainable in the eye of law and are accordingly set aside. The court below is hereby directed to proceed afresh in accordance with law. It is, however, made clear that anything said in this order will not prejudice either parties in the pending trial. With the aforementioned observation and direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)