Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.4613 of 2012 ====================================================== 1. Kunti Devi, W/O Late Prem Chand Rai @ Premnath Rai, Resident Of Village- Agahara, P.S.- Marhowrah, District- Saran 2. Chanchal Rai, S/O Late Prem Chand Rai @ Premnath Rai, Resident Of Village- Agahara, P.S.- Marhowrah, District- Saran 3. Jhakhar Rai, S/O Late Prem Chand Rai @ Premnath Rai, Resident Of Village- Agahara, P.S.- Marhowrah, District- Saran .... .... Petitioner/s Versus 1. The State Of Bihar 2. Lal Mohan Rai, S/O late Bharat Rai, Resident Of Village- Agahara, P.S.- Marhowrah, District- Saran .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ahok Kumar Mishra, Advocate For the Opposite Party/s : Dr. Rabindra Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) 3 02-02-2012 Heard learned counsel for the petitioners and learned Additional Public Prosecutor appearing for the State. 2. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure with a prayer for quashing the order dated 15.12.2011 passed in Sessions Trial No. 199 of 2011 by the learned Additional Sessions Judge IIIrd, Chhapra, whereby a petition filed under Section 228 of the Code of Criminal Procedure on behalf of the petitioners has been rejected. 3. Learned counsel for the petitioners submits that Patna High Court Cr.Misc. No.4613 of 2012 (3) dt.02-02-2012 2 though the petitioners are named in the F.I.R. as an accused in a criminal prosecution registered under [STATUTE] , but in the F.I.R. vide Annexure-I specific allegation of murder is against co-accused Premnath Rai and not against the petitioners. Therefore, learned trial court ought to have allowed the petition and should have come to a finding that no case under [STATUTE] is made out against the petitioners. In support of his submission, he has placed reliance on the case of State of Bihar Vs. Ramesh Singh [AIR 1977 SUPREME COURT 2018 particularly paragraph-4]. 4. In order to appreciate the submissions made on behalf of the petitioners, it would be appropriate to reproduce Section 228 Cr.P.C., which reads as follows:- “228. Framing of charge- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first Patna High Court Cr.Misc. No.4613 of 2012 (3) dt.02-02-2012 3 class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause(b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 5. On plain examination of the provisions under Section 228 Cr.P.C., it is apparent that if the Judge comes to a finding that a case is not exclusively triable by a court of sessions, then in that case, he may frame the charge against the accused and shall transfer the case to the court of the learned Chief Judicial Magistrate or any other Judicial Magistrate of 1st Class, whereafter the trial of the accused is required to be concluded by the court below. However, if the Judge comes to a finding that the case is exclusively triable by the court of session, then he is legally obliged to frame the charge against the accused in writing and the trial is to proceed as sessions trial. As per mandate of Section 228 Cr.P.C. Judge is required to consider as to whether offences are triable exclusively by the Patna High Court Cr.Misc. No.4613 of 2012 (3) dt.02-02-2012 4 court of session or not, and if yes, charge is required to be framed. The particular offences committed by the individual accused are required to be considered for the purposes of framing charge. 6. Under the scheme of Section 228 Cr.P.C., there is no question of discharge of any accused. For the purposes of discharge, an accused is required to approach the Judge in terms of Section 227 Cr.P.C. Admittedly, the petitioners did not approach the learned trial court under Section 227 Cr.P.C.. Considerations under Section 227 Cr.P.C. are entirely different from that of Section 228 Cr.P.C. If any accused files a petition under Section 227 Cr.P.C. and the learned Judge, on consideration of the record and materials available thereon, comes to a finding that there are no sufficient ground for proceeding against that accused, only in that case the accused can be discharged by recording reasons for doing so. Apparently under the mandate of Section 228 Cr.P.C. objection can be raised by an accused only regarding forum of the trial. If on the basis of materials, the Judge comes to a finding that accused has not committed offence exclusively triable by the court of session, then in that case the trial may be remitted to the learned Chief Judicial Magistrate or any other Judicial Magistrate of the 1st Class. But, if there are materials to presume that the accused has committed an offence exclusively triable by the court of Patna High Court Cr.Misc. No.4613 of 2012 (3) dt.02-02-2012 5 session, then charge has to be framed by the learned session court. Once the Judge come

Applicable IPC Section: 307

Statute Text:
Section 307 of the Indian Penal Code. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.