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2007 DIGILAW 1667 (PAT)

Dharmendra Kumar v. State Of Bihar

2007-10-09

MIHIR KUMAR JHA

body2007
Judgment 1. Heard learned counsel for the petitioner. No one appeared on behalf of the opposite party nos. 2 to 6. 2. In this case notices were issued to opposite party nos. 2 to 6 by this Court on 18.7.2007 and they were also validly served. In fact opposite party nos. 2 to 6 have also appeared through their counsel but no one is present when the case has been called out today. 3. In this case a peculiar situation has emerged. Initially the Court below i.e. the Court of C.J.M., Arrah, by its order dated 4.1.2005 had taken cognizance for offence under Sections 341, 324, 327, 379 and 34 of the Indian Penal Code and had issued summons to the said accused including one Laxman Yadav. As against this order dated 4.1.2005 the accused persons had filed a Cri. Revision No. 193 of 2005 which was heard and disposed of by the Addl. District and Sessions Judge (F.T.C.-V), Anah, by his order dated 28.6.2006 holding that the order dated 4.1.2005 was absolutely justified and that there were materials for proceeding against all the accused persons for different offence including offence under Section 379 of the Indian Penal Code. It is to be noted here that the said order in revision dated 28.6.2006 came to be challenged by the accused persons in Cri. Misc. No. 34044 of 2006 and the same was dismissed as withdrawn with liberty to raise all these points at the time of framing of charge. 4. Now comes the impugned order dated 14.12.2006 whereby and whereunder the Sessions Judge, Bhojpur at Arrah has disposed of an application dated 20.10.2006 which was filed for transferring the case to the Court of C.J.M., Arrah, in exercise of power under Section 228(a) of the Code of Criminal Procedure on the ground that there was no material for framing charge under Section 307 of the Indian Penal Code. The attention of the Sessions Judge however does not seem to have been drawn towards aforementioned order dated 28.6.2006 passed in revision or even to the order dated 14.11.2006 passed by this Court. Consequently, there has been some sort of conflicting finding with regard to the same occurrence and in respect of the same accused persons. 5. The attention of the Sessions Judge however does not seem to have been drawn towards aforementioned order dated 28.6.2006 passed in revision or even to the order dated 14.11.2006 passed by this Court. Consequently, there has been some sort of conflicting finding with regard to the same occurrence and in respect of the same accused persons. 5. Be that as it may, as the impugned order dated 14.12.2006 seems to have been passed in ignorance of the earlier revisional order dated 28.6.2006 which stood affirmed and merged in the order of this Court dated 14.11.2006 in Cri. Misc. No. 34044 of 2004, this Court is of the view that the learned Sessions Judge should once again apply his mind to the facts afresh and should come to a decision whether his finding running contrary to the findings of the same Court can still be sustained. The impugned order dated 14.12.2006 is thus hereby quashed and the matter is remitted back to the Court below to pass a fresh order in accordance with law. 6. With the aforementioned observation and direction this application is disposed of.