IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1556 of 2011 SUDHIR KUMAR & ORS. Versus THE STATE OF BIHAR AND ORS. ----------- For the Petitioners: Shri Hemant Kumar Karn, Advocate For the State : Shri Nagendra Prasad, APP 2/ 19.1.2011 Heard learned counsel for the parties. The order taking cognizance passed by Shri Akshay Kumar Singh, Judicial Magistrate Ist Class, Patna on 15.7.2010 in Complaint Case no. 1412 C of 2010 is sought to be quashed by the present petition. By the above order, the magistrate was summoning the petitioners for committing offences under sections 323, 379 and 506 of the Indian Penal Code. The allegation in the complaint petition is that on 21.5.2010 at 7.30 PM while the children of the family of the complainant and those of the accused persons were playing in the campus of the accused, all the accused persons came, entered into the campus forcibly with lathi and danda and started beating up the children playing there and threatened them not to play and in case they did it again, then they will be thrown out of the campus. It is alleged that the children raised a halla and on their halla, the complainant and other witnesses came from inside their houses and petitioner Sudhir Kumar and Arun Kumar started abusing and beating the complainant without any fault and when it was objected to, the accused persons threatened of dire consequences. It was further alleged that the accused wife of petitioner Sudhir Kumar, i.e., petitioner no. 3 and wife of petitioner Arun Kumar, i.e., 2 petitioner no. 4 snatched some ornaments as per details given in paragraph 3 of the complaint petition. The complainant stated that he went to the police station for lodging the case but that was not received and as such, he was forced to file the complaint petition. It was contended by learned counsel for the petitioner that as a matter of fact, the complainant, on account of some personal reasons, had developed a dislike for the petitioners and was threatening the petitioners Sudhir Kumar and his family members including the children of dire consequences besides being implicated in serious matters and on that account, she had lodged an information before the Officer Incharge of Jakkanpur Police station on 22.5.2010, i.e., four days prior to the filing of the complaint petition. It was contended that the filing of the information before the police was simply the reason for filing the false complaint petition. As may appear from the conjoint reading of sections 202 and 204 of the Code of Criminal Procedure, the summoning order or an order of dismissal, could be passed if the magistrate has considered the statement of the complainant made on solemn affirmation and those of his witnesses and also the result of enquiry or investigation, if any. If he finds no sufficient ground for proceeding, in that case, after assigning reasons, the magistrate shall have to dismiss the complaint petition. In case of finding grounds for proceeding against the accused persons, the magistrate shall have to issue summons as per the provisions of section 204 of the Code of 3 Criminal Procedure. It is a trite law that no prospective defence of the accused could be considered for quashing a proceeding or even if the facts of the case may indicate it ending in acquittal and also in case there are some contradictions in the statements of witnesses examined in course of enquiry. The court is empowered to dismiss the complaint if, after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation under section 202 of the Code, the court is of the opinion that there is no sufficient ground for proceeding. But, it is very difficult for this court to say anything on the merit of the allegations in the complaint petition and especially when the magistrate appears satisfied about the sufficiency of the material. Simultaneously, it is very difficult for this court to judge the prospective strength of the defence of filing an information petition before the police. The court feels that the petitioners should go to trial. What the court has to do is that in case of accused persons, who are ladies, approaching, the trial court with an appropriate prayer, it may allow them to be represented by their counsel under section 205 of the Code of Criminal Procedure. The petition is dismissed with the aforementioned observations. Anil/ ( Dharnidhar Jha, J.)