IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25530 of 2007 1. NURUL ISLAM son of Late Shafey Ahmad, 2. Md. Rahique son of Late Md. Rafique, 3. Md. Irshad @ Gorey son of Md. Rahique, All resident of village- Mohammadpur Koari, Police Station- Tajpur (Waini), District- Samastipur. ... Petitioners Versus 1. THE STATE OF BIHAR 2. Amiri Khatoon, wife of Shamsuzzama @ Munnu resident of village- Mohammadpur Koari, Police Station- Tajpur (Waini), District-Samastipur. ... Opposite parties ----------- 8. 31.07.2009. Heard counsel for the petitioners, counsel for the State as also counsel for opposite party no. 2, informant. There can be no quarrel at least in law that even when a police will submit a final form finding the allegation in the first information report to be not substantiated, the magistrate has still the power to differ with such final form and take cognizance of the offence. This being the settled position in law, when this Court would examine the impugned order dated 2.5.2007, it would find that the court below has found the case as alleged by opposite party no. 2 be substantiated in the statement of witnesses as recorded in paragraph 4, 6, 7 and 38 of the case diary. Once an application of mind to that - 2 - extent has been made by the Court below, there can hardly be any scope for this court to interfere with the resultant order taking cognizance. The plea of the petitioners of their being a counter case or some other witnesses to have not supported the prosecution can at best be plea in defence which can be only looked into at the stage of trial. That being so, this court would not find any reason to interfere with the impugned order and consequently, this application must be and is hereby dismissed. kanchan. (Mihir Kumar Jha, J.)