IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.12838 of 2009 1. NOOR FATIMA, widow of Late Md. Ghulam Mustafa Khan, Resident of Mohalla – Bhikhanpur, P.S. – Ishaque Chak, P.O. and District – Bhagalpur. 2. Nahid Perween, widow of Late Sharfaraz Khan. 3. Nazir Ahmad Khan, Son of Late Abdul Aziz Khan Both No. 2 and 3, residents of village Barmatpur, P.S. – Kanti, P.O. Damodarpur and District – Muzaffarpur. ............... Petitioners. Versus 1. THE STATE OF BIHAR 2. Md. Akram Khan, Son of Late Ehshan Ahmad Khan, Resident of Mohalla – Bhikhanpur, Near Gumti No. 3, P.S. Ishaquechak, P.O. and District – Bhagalpur. ............... Opp. Parties. ----------- For the Petitioners :- Md. Abu Haider, Advocate. For the State :- Nawal Kishore Prasad, Advocate. 07/ 24.01.2011 This is a petition for quashing the order dated 16.12.2008 passed by Sri N. B. Lal, Judicial Magistrate, Ist Class, Bhagalpur in Complaint Case No. C-733 of 2007 by which the summon has been ordered to issue against the accused persons after taking cognizance for offence under Section 323 of the Indian Penal Code as prima facie case is made out against the accused persons. The prosecution case as alleged by the informant Md. Akram Khan that on 24.04.2007 at 6.00 A.M the accused persons armed with deadly weapon entered into the house of the complainant and abused, assaulted and snatched jewellery and on the complaint the 2 complainant and his witnesses were examined on solemn affirmation and cognizance was taken. Learned counsel for the petitioners submits that both the parties are common descendants and prior to the filing of the complaint a Sanha was filed before the CJM, Bhagalpur by the petitioner Noor Fatima against the complainant Md. Akram Khan and others and even a Sanha was filed by Md. Sahanaz against Md. Akram Khan and others and even a civil litigation with regard to the land is also going on between the parties and hence contend that the petitioners have falsely been implicated due to the prior litigation and further reason a Sanha was filed by this petitioner and hence this case has been filed to wreak vengeance, mala fidely to satiate their grievance. However, learned counsel for the complainant submits that since the allegation made in the complaint makes out an offence and the witnesses have supported the prosecution case and in such a case quashing of the cognizance is neither proper nor in the interest of justice. However, having regard to the allegation made in the complaint there is specific allegation and the offence is made out and the witnesses have supported the 3 prosecution case. However, the mala fide claimed on the basis of having filed the prior case is required to the tested at trial as those documents are neither admitted documents nor admitted facts and however, it is like a defence and the consideration of defence at this stage is neither proper nor sustainable and hence I do not find any merit in the petition and the criminal miscellaneous petition is hereby dismissed. Kundan (Gopal Prasad, J.)