IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13766 of 2009 1. Md. Phool Babu. S/o Late Md. Basir @ Basir Ahmed @ Basir Alam. 2. Sakina Khatoon, W/o Md. Muslim. 3. Sagir Ahmed, S/o Moitur Rehman. 4. Khairu Nisha, W/o Late Md. Basir. 5. Tahir Hussain, S/o Moitur Rehman. 6. Hasina Khatoon, W/o Md. Zakir. All are resident of Village- Mahuain, P.S. Bajapatti, District- Sitamarhi. ……………………..Petitioners. Versus 1. The State of Bihar. 2. Raj Kumar Sah, S/o Siyaram Sah, Resident of Village- Mahuain, P.S. Bajapatti, District-Sitamarhi…..Opposite Parties. For the petitioners :- Mr. Sudhir Kumar Jha, Advocate. Mr. Pawan Kumar, Advocate. For the State :- Mr. Matloob Rab, A.P.P. ----------- 3. 24. 01. 2011. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 11. 02. 2009 passed by Shri B. P. Tiwary, Judicial Magistrate, Ist Class, Pupri at Sitamarhi, in Complaint Case No. 163/2008, by which Judicial Magistrate has taken cognizance for offence under Sections 147, 323, 504 and 452 of the Indian Penal Code and has also issued summons. 2. The prosecution case as alleged in the complaint petition that complainant lodged an F.I.R. regarding kidnapping of her minor daughter against accused persons which was lodged as Bajapatti P.S. Case No. 17/2008 on 21. 03. 2008. On 22. 03. 2008, all the accused persons apprehended the complainant 2 and pressurised to withdraw the case and when the complainant protested and refused, then he was threatened and abused. It is alleged that on 11.05.2008, he was surrounded by the accused persons and abused and assaulted. Further on 11. 05. 2008, again accused persons entered into his house with lethal weapons and assaulted him by slaps and fists and bamboo sticks. 3. Learned counsel for the petitioners, however, contends that in the case of kidnapping filed by the prosecution party, the victim appeared and her statement under Section 164 of Cr.P.C. was recorded on 12. 06. 2008 that she out of her own will have married with Md. Phool Babu and her Sasural has falsely been implicated and hence contended that allegation of kidnapping could be falsified or at least not supported by this witness. It is further contended that allegation against female member of the accused persons neither specific nor specific role attributed against them and hence submits that petitioners have falsely implicated in this case. 4. However, no one appeared on behalf of the complainant even after notice issued. Learned counsel for the State opposed the prayer. 5. However, having regard to the facts that 3 allegations made in the complaint petition makes out an offence as it is alleged that accused persons have been assaulted. However, allegation made in the complaint itself can not be as such so absurd. However, submission about the fact that they have falsely implicated as alleged question of fact can only be decided at the stage of trial not at this stage. However, it was pointed out that some infirmities and statement somewhere which is contradictory to the other statement. However, this Court at this stage neither can appreciate the evidence nor meticulously examined the fact as required at this stage and it is prima facie the evidence is made out. 6. So far question of kidnapping, the victim in her statement has not supported the kidnapping and stated that she has married with Md. Phool Babu with her own sweet will. However, F.I.R. has been lodged on 21. 03. 2008 and occurrence on 22. 03. 2008 and hence taking into consideration the fact that the statement of the victim was recorded on 12. 06. 2008 is not very much relevant to hold that incidence of on 22. 03. 2008, is false and suffer from malice and moreover, it is a question of fact to be decided at trial. 7. However, having regard to the allegation makes out an offence and the allegation made is not so 4 absurd. Hence ground for quashing the complaint on the basis of malafide which is of secondary importance and hence merely on the ground of malafide the order order taking cognizance can not be quashed. 8. In the facts and circumstances of the case, I do not find any ground to quash the impugned order taking cognizance and the criminal proceeding. However, no specific allegation against female members of the accused persons, hence liberty is given to the petitioners to raise issue at the stage of framing of the charge. 9. With the above observations/directions, the petition is hereby dismissed. m.p. ( Gopal Prasad, J.)