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2010 DIGILAW 311 (PAT)

Lalbabu Prasad @ Lalbabu Mahto v. State Of Bihar

2010-03-09

RAKESH KUMAR

body2010
JUDGEMENT 1. Heard learned counsel for the petitioner, State and the Opp.Party no.2. 2. The petitioners have challenged the order dated 11th September,2007 passed by Addl.Sessions Judge, F.T.C.II, Ara in Sessions Trial No.319 of 2006 arising out of Ara Mufassil P.S. Case No.11 of 2004 by which the petition for discharge of accused persons from the offence under Section 307 of the Indian Penal Code was rejected. 3. Learned counsel for the petitioners submits that on bare perusal of the F.I.R., it is evident that there was no intention to kill the informant, though in the F.I.R. it has been alleged that one of the accused persons was carrying pistol in his hand. Learned counsel further refers Annexures 2 and 3 to the petition which, according to him, are typed copy of the injury reports. Firstly, in para 5 of the petition, stand has been taken by the petitioners that the informant managed the police as well as the doctor in concocting false injuries report. Learned counsel for the petitioners submits that with a view to apply Section 307 of the Indian Penal Code, the Court is required to at least examine the three points: (i) manner of occurrence, (ii) weapon used in the occurrence and (iii) repetition of assault by the accused persons. The allegation of the F.I.R.has been incorporated in paragraph 3 of the petition. As per the F.I.R. when the informant fell down on the ground during the occurrence, one of the accused pointed pistol close to the informant. Others caught hold of the informant and pushed him on the ground. Some of the accused put legs on the chest as well on the hands of the informant and thereafter by putting rope around the neck of the informant accused persons started dragging the informant. In the meanwhile, on hearing sound of whining of the informant, the son of the informant arrived at the place of occurrence and immediately thereafter all the accused persons fled away. On the basis of the F.I.R., learned counsel for the petitioners submits that no offence under Section 307 I.P.C. is made out and, as such, learned Sessions Judge while rejecting their petition for discharge from Section 307 I.P.C. has completely erred in the law and on this ground alone, the order is liable to be set aside. On the basis of the F.I.R., learned counsel for the petitioners submits that no offence under Section 307 I.P.C. is made out and, as such, learned Sessions Judge while rejecting their petition for discharge from Section 307 I.P.C. has completely erred in the law and on this ground alone, the order is liable to be set aside. Learned counsel for the petitioners further submits that it was a case, in which the learned Sessions Judge was required to exercise power under Section 228(1)(a) Cr.P.C, but the Court below has failed to do so and order rejecting discharge petition is illegal. 4. Learned counsel for the petitioners submits that in this case besides informant, none of the witnesses have supported the prosecution case as an eye witness. He further submits that whole case is based on information given by the informant only. 5. Learned counsel for Opp.Party no.2 vehemently opposed the prayer of the petitioners and submitted that there is no illegality in the order. He also submits that during investigation, materials were collected which indicates commission of offences under Section 307 of the Indian Penal Code and other allied Sections of the Indian Penal Code. 6. Learned counsel for the State supports the stand of Opp.Party no.2. He also opposed the prayer of the petitioners. He submits that the law is settled on the point that the power under Section 482 Cr.P.C. is to be exercised in exceptional and rarest of rare cases. 7. I have examined the impugned order as well as materials available on the record. First of all, it is necessary to indicate that the petition filed under Section 227 Cr.P.C. on behalf of the petitioners for being discharged from the offence under Section 307 of the Indian Penal Code was thoroughly examined by the iearned Adds. Sessions Judge. Though, there was no requirement to assign any reason, while rejecting a petition for discharge, he has given some reason also which indicates his satisfaction for rejecting the discharge petition. Section 227 Cr.P.C. does not indicate that while rejecting a discharge petition, the Court is required to assign reason. However, the reason is to be assigned only in a case where the Court considers to discharge an accused. Section 227 Cr.P.C. does not indicate that while rejecting a discharge petition, the Court is required to assign reason. However, the reason is to be assigned only in a case where the Court considers to discharge an accused. Learned counsel for the petitioners submits that he is not on the point of discharge but he submits that the learned Addl.Sessions Judge was required to pass an order under Section 228 (1) (a) Cr.P.C. The order impugned indicates that the learned Court below has examined the materials and only thereafter with a view to reject their discharge petition, he came to the conclusion that offence under Section 307 and other allied Sections of the Penal Code is made out and thereafter the case was fixed for 12.9.2007 for framing of charges. 8. I am of the view that before hearing on the charge, for which date was fixed to 12.9.2007, the prayer for exercising power by the learned Addl.Sessions Judge under Section 228 (1)(a) was pre-mature. In this case immediately after rejection of their petition under Section 227 Cr.P.C, the petitioners rushed to this Court while invoking inherent jurisdiction under Section 482 Cr.P.C. Time without number, it has been held that superior Courts should refrain from interfering at the initial or interlocutory stage of the case. At this stage, it would be necessary to refer a case reported in 1995(3) Cri.L.J. 2935; G.N.Hegde V/s. S. Bangarappa, in which the Honble Supreme Court has admonished the superior judiciary in the case of interfering at the initial stage. It is true that under Section 216 Cr.P.C. at any stage, charge either can be amended or altered. In that view of the matter, I do not think that it would be appropriate for this Court to interfere with an order which has been passed at the initial stage i.e., at the stage of passing an order on a discharge petition. 9. I am in agreement with the submission of the learned counsel for the State that the power under Section 482 Cr.P.C. is to be exercised in exceptional and rarest of rare cases. 9. I am in agreement with the submission of the learned counsel for the State that the power under Section 482 Cr.P.C. is to be exercised in exceptional and rarest of rare cases. I do not find the present case to be a case for putting in the category of rarest of rare cases, particularly due to the reason that at this stage this Court cannot examine the allegation against the petitioners that the police as well as the doctor were managed by the informant. In that view of the matter I do not find any merit in this petition. Accordingly, the petition stands rejected. 10. In this case, it appears that by order dated 16.1.2009, proceeding in Sessions Trial No.319 of 2006 pending in the Court of the learned Addl.Sessions Judge, F.T.C.No.2, Bhojpur, Ara was ordered to remain stayed. Since the petition has been rejected, the order of stay automatically stands vacated. This order may be communicated forthwith.