Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.135 of 2009 ====================================================== Munna Kumar Rai, son of Jalandhar Rai, resident of jvillage Kharika, P.S. Sonepur, District saran at Chapra .... .... Petitioner/s Versus 1. The State of Bihar 2. Vijay Maharaj @ Vijay Kumar Maharaj, son of Gorakh Maharaj, resident of village Kharika, P.S. Sonepur, District Saran at Chapra .... .... Opposite party/s ====================================================== Appearance : For the Petitioner/s : Mr. Vijay Kumar, Advocate Ms. Rajani Kumari, Advocate For the State of Bihar : Mr. Binod Kumar, Addl.P.P. For the Opp. Party No.2 : Mr. Manoj Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 3 25-09-2012 Heard learned counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the State and learned counsel appearing on behalf of the opposite party no.2. The petitioner, the informant of the criminal case,being aggrieved by the impugned order dated 15.11.2008 passed in Sessions Trial No. 472 of 2008 by the learned 1st Additional sessions Judge, Saran at Chapra allowing the prayer for discharge made on behalf of the accused-opposite party no.2 in terms of Section 227 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), has preferred the present revision application Patna High Court CR. REV. No.135 of 2009 (3) dt.25-09-2012 2 / 4 2 under Sections 397 and 401 Cr. P.C., questioning the correctness, propriety and legality of the aforesaid impugned order. Learned counsel appearing on behalf of the petitioner submits that with respect to murder of one Nand Kishore Rai, full brother of the petitioner, a criminal prosecution for offences under sections 302/120B/34 of the Indian penal Code was registered by the petitioner, giving rise to sonepur P.S.Case No. 273 of 2007 dated 27.12.2007. In the F.I.R. vide Annexur-1, opposite party no.2 is named as an accused and is alleged to be one of the conspirators for committing the crime in question. It is submitted that on close of investigation, charge sheet has been submitted against opposite party no.2 also, besides others, for offences under [STATUTE] . Accordingly, cognizance was taken by the learned Judicial Magistrate and the case was committed to the court of Sessions, giving rise to the aforesaid Sessions Trial No. 472 of 2008. It is next submitted that before the learned trial court a petition under Section 227 Cr. P.C. was filed on behalf of the opposite party no.2 for his discharge from the aforesaid criminal case, which has been allowed by the learned trial court by the impugned order on misconceived notion of law and by misinterpreting the prosecution case. Learned counsel appearing on behalf of the opposite party no.2 has opposed the prayer made on behalf of the petitioner and has supported the impugned order. According to the learned counsel, since there was no material available on record to show direct involvement and actual participation of the opposite party no.2 in commission of crime of murder, therefore, the learned trial court has allowed the petition for discharge filed on behalf of the opposite party no.2, which does not require any interference by Patna High Court CR. REV. No.135 of 2009 (3) dt.25-09-2012 3 / 4 3 this Court. After having heard learned counsel for the parties and on examination of materials on record, as also on perusal of the impugned order passed by the learned trial court, this Court finds that in the F.I.R. the opposite party no. 2 is not alleged to be the assailant of the deceased, and he is also not alleged to have actually participated in the assault upon the deceased in any manner, rather he is alleged to be one of the conspirators for getting the crime in question committed. The criminal prosecution has been launched for the offences under [STATUTE] . Cognizance has also been taken by the learned Judicial Magistrate for the aforesaid offences. It is not the prosecution case that the opposite party no.2 was assailant of the deceased, rather according to the prosecution case itself he is one of the conspirators for getting the crime in question committed. The learned trial court has allowed the prayer for discharge on the ground that there is absolutely no allegation that the petitioner had participated in the actual commission of the crime in question. The consideration of the learned trial court is contrary to the materials available on record and on complete misreading of the prosecution case. It is well settled by catena of judgments of the Hon’ble Apex Court as also of this Court that for the purpose of framing charge, the learned trial court is required to find out only a prima facie case. Even grave suspicion shall be enough for framing charge against a particular accused and for putting him on trial. The Hon’ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal and Another [AIR 1979 S.C. 366] has laid down the criteria and the principles for exercising powers Patna High Court CR. REV. No.135 of 2009 (3) dt.25-09-2012 4 / 4 4 under Section 227 Cr.P.C. The aforesaid principles laid down by the Hon’ble Apex Court has been followed in subsequent judgments of the Hon’ble Apex Court. The impugned order passed by the learned trial court is in complete contravention of the principles laid down by the Hon’ble Apex Court. On plain perusal of the impugned order, it appears that the learned trial court at the stage of framing charge itself has proceeded on an assumption that at that stage itself he is required to record either a judgment of conviction or judgment of acquittal. The approach of the learned trial court in passing the impugned order is not only perverse and fallacious, rather it is contrary to the well settled principles of law laid down by the Hon’

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.