Case Facts:
Patna High Court Cr.Misc. No.39807 of 2010 (6) dt.09-10-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39807 of 2010 ====================================================== Mausam Yadav .... .... Petitioner/s Versus State Of Bihar & Anr .... .... Opposite Party/s ====================================================== Appearance: For the petitioner : Mr. Dinesh Pd. Verma, Advocate For the State : Mr. A.H.M. Rahman, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 6 09-10-2012 Heard learned counsel for the petitioner as well as learned Addl. Public Prosecutor for the State. Also heard learned counsel for opposite party no.2 and with the consent of both the parties, this court proceeds to decide this petition finally on the admission stage itself. The petitioner was made accused in Kumarkhand P.S. case no.99/2009 registered under [STATUTE] but after investigation, police submitted final form showing accusation untrue in respect of the petitioner. On being receipt of the charge sheet, learned Chief Judicial Magistrate went through the case diary and having relied upon paragraphs 11, 12, 13, 20,21, 22, 23 and 24 of the case diary, differed with the findings of the police and took cognizance for the offence punishable under [STATUTE] . Learned counsel for the petitioner submits that there was nothing against the petitioner in the paragraphs referred by learned Chief Judicial Magistrate in his impugned order and, therefore, order dated 2.7.2010 by which learned Chief Judicial Magistrate took cognizance against the petitioner is bad in law. Patna High Court Cr.Misc. No.39807 of 2010 (6) dt.09-10-2012 2 On the other hand, learned counsel for opposite party no.2 submits that learned Chief Judicial Magistrate has given reason in the impugned order for taking cognizance against the petitioner and, therefore, this petition should be dismissed on admission stage itself. Petitioner has prayed for quashing the order dated 2.7.2010 passed by learned Chief Judicial Magistrate, Madhepura in the above stated Kumarkhand P.S. case no. 99/2009 by which and whereunder he took cognizance for the offence under [STATUTE] differing with the findings of the police. In my view, the petitioner may raise his plea before the learned trial court at the time of framing of the charge and it would not be proper for this court to quash the order dated 2.7.2010 and accordingly, this petition stands dismissed at the admission stage itself. However, the petitioner may raise his plea before the learned trial court at the time of framing of the charge and if he does so, the learned trial court shall pass order in accordance with law without being prejudiced by this order. Shahid/- (Hemant Kumar Srivastava, J)

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.