IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9764 of 2007 MITHILESH PATHAK @ BRINDABAN, son of Shaligram Pathak, resident of Shanti Nagar, P S – Buxar Town, Town and District – Buxar. Versus 1. STATE OF BIHAR 2. Ramawati Devi, wife of Jhunno Singh, resident of Sugar Mill, P S - Buxar Town, District-Buxar. ----------- For the petitioner : M/S. Dineshwar Mishra & Surendra Mishra For O.P.No.2: Mr. Bachan Jee Ojha. ------- 07. 17.04.2009 Vide order dated 5.12.2006 passed by the learned Chief Judicial Magistrate, Buxar in Buxar Town P S Case No. 228 of 2006 cognizance has been taken against the petitioner under sections 363, 366(A), 376 and 120B of the Indian Penal Code. Petitioner wants quashing of the order of cognizance on the ground that in a mechanical and cryptic manner cognizance has been taken by the Magistrate for the above offences. He submits that even in the FIR there is no allegation of any rape having been committed on the victim nor is the above fact stated in 164 statement made by the victim before the Magistrate. That is one aspect of the matter. The basic fact is that there is allegation so far petitioner is concerned with regard to other substantive offences and the chargesheet has been filed by the police based on the material which has emerged during the course of investigation. Even otherwise statement under section 164 Cr.P.C. will have to be tested during the course of trial and it cannot be a foundational ground on which the cognizance can be quashed under section 482 of the Code of Criminal Procedure. - 2 - The application is misplaced and the same is dismissed. It will be open to the petitioner to argue and urge all the points which may be available to him at the time of framing of charge. rkp (Ajay Kumar Tripathi, J)