IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39636 of 2011 Sudarshan Mishra & Ors. Versus The State Of Bihar & Anr ---------------------------------- 02. 16.12.2011. Heard the learned counsel for the petitioners as well as the learned A.P.P. for the State. Petitioners have challenged the order of cognizance dated 18.04.2011 by which petitioners have been summoned to face trial for an offence punishable under Sections 504 and 506 of the IPC. For an occurrence alleged to have taken place on 18.12.2010, petitioners have instituted Sheo Sagar P.S.Case No.269 of 2010 on 19.12.2010 while O.P.no.2 had filed complaint petition on 20.12.2010. Submission is that because of the fact that petitioners have earlier instituted a case therefore present case should be considered as a case to make out a defence case that too in its retaliation. It has further been submitted that after getting information under Right to Information Act(Annexure-3), petitioner no.2 Akhilesh @ Akhilesh Mishra and petitioner no.4 Umesh Kumar Mishra @ Umesh Mishra @ 2 Munna Mishra were not at all present in the village rather petitioners no.2 and 4 were at Delhi and so submitted that their alibi should be taken into account. The learned A.P.P. opposed and submitted that the present stage is not a fit stage where under contention of the petitioner should be considered. Case and counter case for an offence is permissible. There may be version and counter version regarding manner of occurrence and in the aforesaid account it cannot be said that one case happens to be malafide in its inception unless and until the same is adjudicated upon by the competent court as has been decided by the Hon’ble Apex Court reported in 2009 Criminal Law Journal 958, 2010 AIR SCW 3683. In likewise manner alibi is a factual theme which could be taken up during course of trial. No other infirmity is visible from the order impugned. Therefore, impugned petition is found to devoid of merit and it is accordingly rejected. B.Kr. (Aditya Kumar Trivedi,J.)