S.P. Sinha, J.

Both these applications being closely connected with the incident, have been heard together and are being disposed by this order.

2. The facts giving rise to these two applications are that the Pirbahore Police in the district of Patna, having got confidential information that the petitioner, who is the proprietor of a hotel run in the name of Ajanta Hotel in Govind Mitra Road, one of the quarters of the town of Patna, was misbehaving with a minor girl in the hotel premises, the officer-in-charge of the said police station went to the hotel and found a great deal of commotion in the locality. He also found the petitioner sleeping naked with a naked girl in room no. 7 on the second floor of the hotel. The door of the said room was wide open and the actions of the petitioner were visible from outside. Both, the said girl and the petitioner were taken in custody. The girl then gave a fardbeyan in which she stated that her name was Nagina Kumari, daughter of Jodhan Ram, deceased resident of Kalyanpur, Police Station Katra District Muzaffarpur. She gave out her age to be about 16 years. She stated the manner in which she was enticed away from her home by a woman by the name of Premshila Devi. According to the girl, she was brought to Patna from her home by the said Premshila Devi. From Patna she was taken to Masaurhi where she was kept in the house of a Pasi. From there Premshila again brought her back; to Patna and at the Mahendru Steamer Ghat the said Premshila Devi sold her for a sum of Rs.1,000/- to a young man belonging to Balia district. On account of the great resentment shown by the girl Nagina Kumari, some of the passengers at the steamer ghat intervened. The petitioner Bishwanath Prasad was also one of the passengers who came to her rescue at the said ghat. The petitioner then kept her in his house and even got her treated when she fell ill. After she recovered from her illness which took more than a month, the petitioner Bishwanath Prasad started using the girl for immoral purposes. The occurrence on the night of the 6th of November, 1971 was one such occurrence of sexual intercourse by the petitioner Bishwanath Prasad with the said girl.

3. The officer-in-charge of the Pirbahore Police Station filed a petition of complaint addressed to the Sub-divisional Magistrate Sadar, Patna, alleging offence under section 290 or the Indian Penal Code (hereinafter to be called the Code) against the petitioner and the said girl, on which cognizance has been taken by the said Sub-divisional Magistrate and the case is pending in the court of a Judicial Magistrate, Patna. Criminal Miscellaneous 789 of 1976 arises out of this matter against taking cognizance of an offence under section 290 of the Code.

4. As stated, Nagina Kumari bad made fardbeyan before the officer-in-charge of the Perbahore police station. It is not very clear, but possibly the fardbeyan was forwarded to Katra police station, where a case was instituted and on submission of the charge sheet cognizance under sections 366, 376 and 379 of the Code has been taken by the Sub-divisional Magistrate, Muzaffarpur against the petitioner as also against the said Premshila Devi. Since Premshila Devi is absconding, the case for those offences is proceeding only against the petitioner in the Court of a Judicial Magistrate at Muzaffarpur. Criminal Miscellaneous 1546 of 1974 is directed against this matter.

5. Mr. Prasad appearing for the petitioner submitted that on the basis of the complaint filed by the officer-in-charge of the Pirbahore police station before the Sub-divisional Magistrate, Sadar, Patna, no offence under section 290 of the Code is made out and consequently, the prosecution of the petitioner for offence under Section 290 must be quashed. It is further submitted that, since offence under section 290 was not a cognizable offence, the manner in which the cognizance has been taken was wholly illegal and it must, therefore, be quashed. This argument, ho