IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.29460 of 2009
Bholajee
Versus
State Of Bihar
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For the Petitioner :- Mr. Mukesh Kr. Singh (Adv.)
For the State :- Mr. Akbar Ali (A.P.P.)
02 14.10.2011 Heard learned counsel for the petitioner as well as
learned Additional Public Prosecutor for the State.
It is gathered that ten named and near about 200
unknown persons were made accused in Town Chapra P.S. Case No.
218 of 2005 registered under Sections 147, 148, 149, 353, 323, 307,
427 and 379 of the Indian Penal Code. It is further gathered from
Annexure-3 to this petition that eight accused persons filed a petition
under Section 228 of the Cr.P.C. on 22.03.2007 before learned
Additional Sessions Judge, Fast Track Court-IV and after hearing the
aforesaid accused persons on the above stated petition, learned
Additional Sessions Judge, Fast Track Court-IV passed order dated
12.03.2008 in Sessions Trial No. 122 of 2007 giving this finding that
the aforesaid accused persons have committed the offence which is
not exclusively triable by the court of Sessions and accordingly, he
fixed the date for framing the charge against all the above stated
accused persons and also observed that after framing of the charge, the
record of aforesaid accused persons would be transferred to the court
of Chief Judicial Magistrate, Chapra for trial.
It would further gather from the record that a petition
under Section 228 of the Cr.P.C. was filed on behalf of the petitioner
on 13.02.2009 making some prayer as observed by learned Additional
Sessions Judge, Fast Track Court-IV, Chapra vide order dated
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12.03.2008 and the aforesaid fact was brought to the notice of the then
2nd Additional Sessions Judge, Chapra but he rejected the aforesaid
prayer of the petitioner vide impugned order dated 24.07.2009 passed
in Sessions Case No. 795 of 2008 coming to the conclusion that a
clear cut case under Section 307 and other minor Sections are made
out against the petitioner. It appears that both the aforesaid orders
have been passed by same judicial officer. It is not clear from the
materials available on the record as to whether the order dated
12.03.2008 passed in Sessions Trial No. 122 of 2007 was set aside by
the Higher Court or not. So, I think it proper to call for a report from
the court of 2nd Additional Sessions Judge, Saran at Chapra to the
above stated effect and accordingly, a report be called for from 2nd
Additional Sessions Judge, Saran at Chapra as to whether order dated
12.03.2008 passed in Sessions Trial No. 122 of 2007 has been
challenged and set aside by the Higher Court or not and if the
aforesaid order has not been set aside by the Higher Court as to under
which circumstances he passed the impugned order dated 24.07.2009.
The aforesaid report must reach to this Court within three weeks from
the date of receipt of this order.
List the matter before me after receipt of the above
stated report under the same heading.
In the meantime, further proceeding of Sessions Trial
No. 795 of 2008 pending in the court of 2nd Additional Sessions
Judge, Saran at Chapra shall remain stayed in respect of petitioner
only till further order of this Court.
SHAHZAD ( Hemant Kumar Srivastava, J.)