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2012 DIGILAW 1071 (PAT)

Brahmanand Mishra v. Vivekanand Mishra

2012-08-03

BIRENDRA PRASAD VERMA

body2012
ORAL ORDER Heard. 2. By the impugned order dated 16.4.2010 passed in Sessions Trial No. 728 of 2008 by the learned Additional Sessions Judge, F.T.C. III, Saran at Chapra, while exercising powers under section 228 (1) (a) Cr.P.C. the learned trial court has come to a finding that no case under section 307 I.P.C. is made out against accused-opposite party Nos. 1 to 9 and remaining offences are exclusively triable by the learned magistrate. Therefore, the record of the case was directed to be transmitted to the court of learned Chief Judicial Magistrate, Saran at Chapra for framing charge against accused-opposite party nos. 1 to 9 for various others offences and for proceeding in the matter further in accordance with law. 3. Learned counsel for the petitioner submits that, as a matter of fact, charge under section 307 I.P.C. is made out against accused persons and the case ought not to have been remitted to the court of the learned Chief Judicial Magistrate and ought to have been tried by the learned sessions court itself. 4. After having heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing on behalf of the State, this Court finds that the petitioner has a remedy before the learned magistrate under section 323 Cr.P.C. If the trial of the accused-opposite party nos. 1 to 9 proceeds and the prosecution produces evidence in support of the prosecution case and, if on the basis of the materials/evidence produced, the learned magistrate comes to a finding that the case at hand should be tried by the sessions court, then he can pass an appropriate order for committing the case to the court of sessions. On such commitment trial of the accused will have to be proceeded under provisions of Chapter XVIII Cr.P.C. 5. In view of the fact that the petitioner has a remedy under section 323 Cr.P.C., this Court is not inclined to exercise its revisional jurisdiction for interfering with the impugned order at this stage. 6. The application stands disposed of with the observation made above.