IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.6869 of 2009 1. MADHUSUDAN PANDEY, S/o. Late Ram Chandra Pandey. 2. Suryanath Pandey, S/o. Late Basudeo Pandey. 3. Ambrish Pandey, S/o. Late Dudheshwar Pandey. 4. Sheo Shankar Pandey, S/o. Ram Chandra Pandey. 5. Krishna Kumar Pandey, S/o. Ambrish Pandey. 6. Bhopal Pandey, S/o. Late Kedar Pandey. 7. Sudhir Prasad, S/o. Chumeshwar Prasad. All R/o. village – Pandepur, P.S. – Sandesh, District – Bhojpur, Ara. .................... Petitioners. Versus 1. THE STATE OF BIHAR 2. Raj Kishori Devi, S/o. Raj Kishor Pandey, R/o. village – Pandeypur, P.S. – Sandesh, District – Bhojpur. ..................... Opp. Parties. ----------- For the Petitioners :- Sri B. J. Oja, Advocate. For the State :- Sri Nityanand Tiwary, A.P.P. For the O.P. No. 2 :- Sri Ravindra Kumar, Advocate. 04/ 04.01.2011 Heard. This is a petition for quashing the order taking cognizance dated 06.01.2009 by which summons has been ordered to issue against the petitioners in Complaint Case No. 1502 (C) /06 TR. No. 3117 of 2009 for offence under Sections 147, 341 and 504 of the Indian Penal Code. The prosecution case as alleged in the complaint petition by the complainant is that on 08.10.2006 at 10.30 A.M the accused Madhusudan Pandey, Suryanath Pandey, Ambrish Pandey, Sheo Shankar Pandey, Krishna Kumar Pandey, Sudhir Prasad, Bhopal Pandey and Yadubansh Singh, B.P. Singh and Braj 2 Kishore Singh surrounded the house and entered into the house by forming an illegal assembly and accused Shiv Sharan Sah, Yadubansh Singh and B.P. Singh assaulted the accused person and abused and looted ten thousand rupees by breaking the attaché and took away the golden chain, ear ring and two rings. However, on the complaint petition the complaint case was filed on solemn affirmation and the witnesses were examined and after considering the statement of the witnesses the impugned order was passed issuing process. Learned counsel for the petitioners submits that the prosecution party and the accused persons are descendants of common ancestors and the petitioners have also filed a criminal case prior to the institution of this case and further submits that though there are 11 accused persons mentioned in the complaint which includes these seven petitioners and four police officials. However, there is allegation in the complaint petition that the four accused persons also committed the act of assault and theft but the cognizance has not been taken and the process has not been issued against the rest of the four accused persons who were stated to be the police officials and it is alleged 3 that the petitioners have been falsely implicated to wreak vengeance as earlier a case has been filed on behalf of these petitioners against the complainant and others and hence further submits that though the allegation was made against the police officials but the summons has not been issued against them after taking cognizance for the offence and hence contend that the prosecution of the petitioners under the facts and circumstances is abuse of the process of the court. Learned counsel for the State, however, supports the order taking cognizance and submits when the statement was made against the accused in the complaint petition and the statement of the witnesses were made in their solemn affirmation and inquiry under Section 202 of the Cr.P.C makes out an offence, then in such case the defence of the accused may not be looked into as that can only be tested at the stage of the trial and not at this stage and hence submits that the petitioners may raise the issue at the stage of the framing of the charge and not at this stage. However, taking into consideration there is apparent allegation that the accused persons forming an 4 unlawful assembly armed with lethal weapons entered into the premises and though there is no specific allegation against these petitioners about the assault. Though the allegation is against Yadubansh Singh, B.P. Singh and Braj Kishore Singh about the assault. However, during the inquiry it is the domain of the Magistrate either to believe or disbelieve the witnesses of the particular allegation. However, having regard to the fact that the offence alleged against the petitioners and taking into consideration the statement of the complainant on solemn affirmation and the witnesses found the prima facie case for offence under Sections 147, 341 and 504 of the Indian Penal Code is made out. However, taking into consideration the complaint and the statement of the witness if the offence under these sections are made out then the case of the accused persons that they have been falsely implicated in the case for the reasons that they have earlier filed a police case can only be testes at a trial and not at this stage as the two allegations are two versions and neither of the allegation can be established at this stage when the two allegations are testes at trial and hence on that basis at this 5 stage which allegation is true and which allegation is false cannot be decided. However, at the stage of taking cognizance the defence of the accused is not required to be looked into and the court is only required to see whether the allegation is made against the accused and the statement of the witness make out an offence. Hence, having regard to the fact if the allegation in the complaint makes out an offence against the accused persons, the defene of the accused cannot be looked into and hence the question of mala fide point regarding the mala fide and wreak vengeance as set up in this case does not make out a case for quashing and can only be tested at the stage of the trial and hence I do not find any merit in this petition hence the petition is dismissed. However, the petitioners if so advised may raise these issues at the stage of framing of the charge. Kundan (Gopal Prasad, J.)