IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29284 of 2009 1. Rupesh Kumar Srivastava 2. Ritesh Kumar Srivastava Both 1 and 2 sons of Late Mrtunjay Prasad Srivastava 3. Vidya Devi, W/O-Late Mrtunjay Prasad Srivastava All 1 to 3 R/O-Manjhulia, P.S.- Mufasil, District-Siwan Versus 1. The State Of Bihar 2. Alimul Haque, S/O-Sri Habibul Haque, resident of village-Ramapali, P.S.- Mufasil, District-Siwan ----------- For petitioners :- Mr. Yogesh Chandra Verma (Sr. Adv) Mr. Dhirdyoti Kumar Verma (Adv) Mr. Ranjeet Kumar (Adv) Mr. Kundan Kumar (Adv) For the State- Mr. Dr. Mayanand Jha, A.P.P. For O.P. No.2 – Mr. Ajay Kumar Pandey (Adv.) 04 03.11.2011 Heard learned counsel for the petitioners, learned Additional Public Prosecutor for the State as well as learned counsel appearing for Opposite Party No. 2 and with consent of all the parties, this petition is being disposed of on admission stage itself. This petition has been preferred by the petitioners under Section 482 of the Cr.P.C. for quashing the order dated 27.05.2009 passed by learned Chief Judicial Magistrate, Siwan in Mufasil P.S. Case No. 22 of 2009 presently pending in the court of Sri P.C. Anal, Judicial Magistrate, 1st Class, Siwan. By the impugned order, learned Chief Judicial Magistrate, Siwan took cognizance for the offence under Section 366 A of the Indian Penal Code against the petitioners whereas he accepted the final form in respect of co-accused Rakesh Kumar Srivastava and Jyoti Kumar mentioning this fact that there was no material available on the case diary against the above stated accused persons. It is gathered from the record that informant Alimul Haque 2 (Opposite Party No. 2) gave written report to Officer-in-Charge of Mufasil Police Station alleging therein that while he along with his sister, namely, Farheen and cousin sister, namely, Saleha Khatoon were returning to his village, the petitioners and other first information report named accused persons forcibly took his sister, namely, Farheen aged about 17 years on the point of pistol. On the basis of aforesaid written report, above stated Mufasil P.S. Case No. 22 of 2009 for the offence under Sections 363, 366A/34 of the Indian Penal Code was registered against the petitioners and other accused persons. Annexure-3 to this petition reveals that after due investigation police submitted charge-sheet for the offence under Section 366 A of the Indian Penal Code against co-accused Rakesh Kumar Srivastava whereas petitioners and two other accused, namely, Rabish Kumar Srivastava and Jyoti Kumar were not sent up for trial as the accusation against them was found untrue. It would appear from the impugned order that after submission of final form, learned Chief Judicial Magistrate took cognizance against the named accused in column no. 11 of charge-sheet whereas accepted the final form in respect of those accused persons whose names were mentioned in column no. 12 of charge-sheet. Learned counsel appearing for the petitioners submits that, as a matter of fact, the learned Chief Judicial Magistrate passed the impugned order without applying his mind and, as a matter of fact, the names of these petitioners were mentioned in column no. 12 of 3 charge-sheet but in spite of that the learned Chief Judicial Magistrate, Siwan took cognizance against the petitioners though he has specifically mentioned in the impugned order that there was no material against those persons whose names were mentioned in column no. 12 of charge-sheet. It is further contended by him that, as a matter of fact, there was love affair between victim and co-accused Rakesh Kumar Srivastava and at the time of the alleged occurrence the victim was major. It is further contended by him that the statement of victim was recorded under Section 164 of the Cr.P.C. in which she disclosed her age as 22 years and the learned Magistrate, who recorded her statement, assessed her age as 21 years. It is further contended by him that the victim has very clearly stated that she has solemnized her marriage with co-accused Rakesh Kumar Srivastava by her own sweet will. It is further contended by him that the victim was medically examined and she was found major by the medical board. On the other hand, learned counsel appearing for Opposite Party No. 2 submitted that the learned Chief Judicial Magistrate has taken cognizance after considering the materials available on the case diary but in course of hearing he, half-heartedly, admitted this fact that the learned Chief Judicial Magistrate was not intended to take cognizance against those persons whose names were mentioned in column no. 12 of charge-sheet. Considering the submissions as well as materials available on the record, in my view, it is a fit case in which this Court 4 should exercise the power vested under Section 482 of the Cr.P.C. to prevent the abuse of process of the law. Accordingly, the impugned order dated 27.05.2009 passed by learned Chief Judicial Magistrate, Siwan in Mufasil P.S. Case No. 22 of 2009 is quashed in respect of petitioners only. Accordingly, this petition stands disposed of. Let this order be communicated to the concerned court for needful. SHAHZAD ( Hemant Kumar Srivastava, J.)