Ashok Rai &Amp; Ors vs State Of Bihar &Amp; Anr on 25 June, 2010

                  IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 Cr.Misc. No.15591 of 2008
                       1. ASHOK RAI son of Sri Sunder Rai
                       2. Sadanand Thakur son of late Rambhaj Thakur
                       3. Anant Singh @ Anant Kr. Singh son of Laxman
                           Singh
                       4.Mulki Rai son of Baldeo Rai
                           All residents of village-Nemua, P.S.-Barahat
                       Dist.-Banka                 ......       .....Petitioners
                                            Versus
                       1.STATE OF BIHAR
                       2.Vijay Yadav son of late Kawali Yadav,
                         resident of village-Nemua, P.S.-Barahat,
                         Dist.-Banka.            .....     .....Opp.Party.
                                             -----------

2. 25.6.2010. Heard learned counsel for the petitioners and learned

Additional Public Prosecutor for the State.

Four petitioners, while invoking inherent jurisdiction

of this court under section 482 of the Code of Criminal Procedure,

have prayed for quashing of the order dated 27.2.2008 passed by

Sri N.N.Choudhar, learned Additional Sessions Judge, F.T.C.-III,

Banka, in S.T. No.1114 of 2006/Tr. No.141 of 2008. By the said

order the learned Judge has rejected the petition filed on behalf of

the petitioners under section 228 of the Code of Criminal

Procedure for remitting back the case to the court of Magistrate for

trial since, according to the defence, no offence under section 307

of the Indian Penal Code is made out.

Learned counsel for the petitioners, while pressing this

petition, submits that the injury report does not show that during

the occurrence an attempt was made to kill any member of the

informant side and, accordingly, it has been argued that the

learned Judge without examining the materials on record has

rejected the petition filed for remitting back the record to the court
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of Magistrate for trial.

Mrs. Indu Bala Pandey, learned Additional Public

Prosecutor, appearing on behalf of the State has opposed the

prayer of the petitioners.

Besides hearing learned counsel for the parties, I have

examined the materials available on record including the

impugned order. In this case first information report vide Banka

(Barahat) P.S.Case No.275 of 2004 was registered for the offences

under sections 341, 323 and 307/34 of the Indian Penal Code.

Besides four petitioners, other accused persons were also named as

accused in the first information report. From the first information

report itself it appears that in the occurrence on the head of wife of

the informant a Khanti blow was given and, thereafter, other

accused persons also assaulted the family members of the

informant with Lathi. The impugned order shows that the learned

Judge, while hearing the petition filed under section 228 of the

Code of Criminal Procedure, had examined the case record and

observed that injury report shows that there were infliction and

repetition of blows and, accordingly, the learned Judge was of the

opinion that it was a case under section 307 of the Indian Penal

Code. Learned counsel for the petitioners had argued that though

first information report was registered for the offence under

section 307 of the Indian Penal Code also during investigation

police had not collected any material disclosing commission of

offence under section 307 of the Indian Penal Code and charge

sheet was not submitted under section 307 of the Indian Penal
3

Code. However, the learned Magistrate, differing with the charge

sheet submitted by the police, took cognizance of the offence

under section 307 of the Indian Penal Code.

In this case first information report was lodged in the

year 2004 and after submission of the charge sheet the learned

Magistrate had taken cognizance of the offence under section 307

of the Indian Penal Code besides other sections of the Indian Penal

Code and, thereafter, committal proceeding had taken place. It

appears that at the stage of committal proceeding, no objection

was raised for non-application of section 307 of the Indian Penal

Code. In view of materials available on record, I am satisfied that,

while rejecting the petition filed under section 228 of the Code of

Criminal Procedure, the learned Judge has committed no error. It

appears that the said petition was filed only with a view to delay

the commencement of the trial.

Accordingly, I do not find any merit in this petition

and the petition stands rejected. Keeping in view the fact that the

first information report was lodged long back in the year 2004, it

is desirable to direct the court below to proceed with the case

expeditiously and conclude the same as early as possible.

Md.S.                                     ( Rakesh Kumar, J.)